2017 CRIMINAL LAW BAR REVIEWER
JUDGE MARLO B. CAMPANILLA
____________________________________________________________________________________________________
1. Generality - If the accused attacks the jurisdiction of the
court because of the unique characteristic of his person (e.g. he is a
foreigner, military, ambassador, 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.
foreign vessel, embassy or high sea), the applicable principle is
territoriality.
a. Consular and diplomatic immunity - Consular officers are
immune from criminal prosecution of acts performed in the exercise of
function (1967 Convention on Consular Relation). Immunity does not
cover slander (Liang vs. People, GR No. 125865, January 28, 2000), or
reckless imprudence resulting in homicide for not being function-related. A
Chinese diplomat, who killed another Chinese diplomat in Cebu, is
immune from criminal prosecution (The Vienna Convention on Diplomatic
Relations). Unlike consular officers, diplomatic agents are vested with
blanket diplomatic immunity from civil and criminal suits (Minucher vs.
Hon. CA, G.R. No. 142396, February 11, 2003).
b. Presidential immunity - The presidential immunity is
subject the following conditions: (1) the immunity has been asserted
during the period of his incumbency and tenure; and (2) the act
constituting the crime is committed in the performance of his duties.This
immunity will assure the exercise of presidential functions free from any
hindrance, considering that the Chief Executive is a job demands
undivided attention (Estrada vs. Desierto, G.R. No. 146710-15, March 2,
2001).
It is submitted that a Vice-President even during his tenure
could not invoke immunity from criminal prosecution for plunder on the
following reasons: (1) plunder are not his official conducts as Vice-
President; (2) the job of the Vice-President unlike the head of the
executive department does not demands undivided attention; (3) and the
implementation principal penalty of imprisonment for plunder is not
inconsistent with the constitutional provision on non-removal of
impeachable officer except through impeachment since he can function as
Vice-President while serving sentence in prison.However, accessory
penalty of disqualification, which involved removal from office, is not
implementable since the enforcement thereof will offend the constitutional
provision on non-removal of impeachable officer.
c. Parliamentary immunity - An incumbent Senator is not
immune from suit for being a protector or coddler of trading of dangerous
drugs under RA No. 9165. Legislators immunity is confined to
parliamentary privilege from arrest while the Congress is in session in all
offenses punishable by not more than 6 years imprisonment and
parliamentary immunity from prosecution for libel in connection with any
Congressional speech or debate.
2. Territoriality 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 (Reagan vs. Commission on
Internal Revenue, 30 SCRA 968).
b. 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 of another state has jurisdiction over crimes
committed therein. However, a coastal state such as the Philippines can
exercise jurisdiction over any crime committed on board such ship in the
following cases: (1) if its consequences extend to the coastal State; (2) if it
disturbs the peace of the country or the good order of the territorial sea;
(3) if the ship master or a diplomatic or consular officer of the flag State
requested assistance from the local authorities; or (4) if it is for the
suppression of traffic in narcotic drugs or psychotropic substances.
Murder or serious physical injuries committed in a foreign
vessel anchored in a Philippine port against a passenger thereof is within
the jurisdiction of the Philippine court since this crime disturb the peace of
the country.
b. Regime of islands - Under the principle of territoriality, the
court has also jurisdiction over crime committed in Kalayaan Islands or
Scarboruogh Shoal because the Baseline Law (RA No. 9522) declares
that the Philippines exercise sovereignty and jurisdiction over it.
c. Bigamy - Under the principle of territoriality, the court has
jurisdiction over concubinage involving illicit relationship maintained in the
Philippines; but it has no jurisdiction over bigamy involving subsequent
marriage contracted in Taiwan.
3. Extraterritoriality Under the flag state rule, the Philippines
has jurisdiction over hijacking of PAL airplane in an American territory
since it its registered in the Philippines but not over murder committed in
vessel registered in Panama while on high seas although it is owned by a
Filipino. Under the protective principle, the court has jurisdiction over
forgery of Philippine money committed in Taiwan whether by a Filipino or
an alien but not over forgery of US dollars committed therein. Under the
extraterritoriality rule, the court has jurisdiction over plunder, direct bribery
and falsification of document by a public officer in a Philippines consular
premises stationed in America but not corruption of public officer and
falsification of document committed by private individual as principal by
inducement. Under the universality principle, the court has jurisdiction
over piracy committed on high seas for being a universal crime but not
over murder qualified by the circumstance of taking advantage of the
calamity brought about by piracy on high seas. The 12-mile territorial
water of Taiwan or Sabah may be considered as high seas; hence, piracy
committed therein can be prosecuted in the Philippines (People vs. Lol-Lo
and Saraw, G.R. No. L-17958, February 27, 1922).
4. Prospectivity -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 of RPC). 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. 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.
Reclusion perpetua, which has duration of 40 years under
Article 27 of RPC and 30 years under Article 29 of RPC as amended by
RA No. 10592 if the convict has undergone preventive imprisonment, is a
lighter penalty than life imprisonment, which has no duration. Amendatory
law, which prescribes reclusion perpetua instead of life imprisonment,
shall be given a retroactive effect for being favorable to the accused
(People vs. Morilla, GR No. 189833, February 5, 2014).
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If a child in conflict, who is a habitual delinquent, committed the
crime prior to RA No. 9344, he is entitled to retroactive application thereof.
Section 68 of RA No. 9344 expressly provides retroactive application of
the privileges to a child in conflict with the law (Atizado vs. People, G.R.
No. 173822, October 13, 2010, Bersamin) without condition. On the other
hand, Article 22 of the Revised Penal Code provides retroactive
application of the favorable law subject to the condition of non-habitual
delinquency. Since Section 68 of RA No. 9344 is a specific provision while
Article 22 of the Revised Penal Code is a general provision, the latter
yields to the former. Generalia specialibus non derogant. Hence, the
retroactive effect of RA No. 9344 is unconditional.
5. Decriminalization - RA No. 10158 has decriminalized
vagrancy by omitting portions of Article 202 of RPC involving this
crime. Vagrants are victims of poverty and that the law on vagrancy
serves to oppress the very people that the government sought to protect.
RA No. 10655 has decriminalized premature marriage by repealing Article
351 of RPC. This provision is discriminatory because it is not applicable to
men. Moreover, Article 351, which was sought to prevent a possible
confusion as to who is the father of the child born within the period of 301
days after the dissolution of the marriage, is not anymore necessary since
paternity and filiation can now be easily determined through modern
technology.
6. Repeal RA No. 10655 has repealed Article 351 of RPC on
premature marriage without reenactment. This is a total repeal in which
the intention of the new law is to decriminalize an act punishable of old
law. Atotal repeal 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). RA 8353 expressly repealed Article 336 of
RPC on rape but re-enacted it redefining this crimeunder Article 266-A.
This is a partial repealin which the intention of the new law is not to
decriminalize an act punishable of old law but to introduce changes. The
effect of the new law is amendatory. This partial repeal of Article 336 does
not deprive the courts of jurisdiction to try and punish offender for rape
committed prior to RA No. 8353 (U.S. vs. Cana, 12 Phil. 241). RA No.
8353 shall be given prospective effect since it is not favorable to the
accused.
7. Mistake of fact - Authorities, who manned a checkpoint
because of information that there are armed rebels on board a vehicle,
have the duty to validate the information, identify them, and to make a
bloodless arrest unless they were placed in real mortal danger. If they
shot the suspected vehicle, which did not stop after have been flagged
down and killed the occupants therein, who turned out be unarmed
civilians, they are liable for multiple homicides. The mistake of fact
principle is not applicable since there is negligence or bad faith on their
part (Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012).
The accused shot with a firearm and killed by mistake a thief in
the toilet, who turned out to be his girlfriend. Invasion of property is
considered as unlawful aggression under Article 12 of the RPC because
of the self-help doctrine under the Civil Code (People vs. Narvaez, G.R.
Nos. L-33466-67, April 20, 1983). Even though there is no actual invasion
of property, unlawful aggression as an element of defense of property will
be considered as present because of the mistake of fact principle.
However, the means employed by him firing shots through the toilet door
is not reasonable; and hence, he is only entitled to privilege migrating
circumstance of incomplete defense of property (US vs. Apego, G.R. No.
L-7929, November 18, 1912).
8. Proximate cause Suicide is not a felony within the
meaning of Article 4 of RPC; hence, a pregnant woman who attempted to
commit suicide is not liable for abortion due to the consequent death of
the infant. Vexatious act (e.g. pouring gasoline) made as part of fun
making is not felony within the contemplation of Article 4. The accused is
not liable for homicide. However, such act is considered as culpable, and
thus, he is liable for reckless imprudence resulting in homicide (People vs.
Pugay, No 74324, November 17, 1988). Vexatious act made out of hate
(such as putting a robber snake inside the bag of the victim) is unjust
vexation, which is a felony within the contemplation of Article 4. The
accused is liable for homicide if the victim died due to heart attack caused
by seeing a snake in his bag.
a. Tetanus - 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 tetanus infection. Since infection is severe, he died
the next day. The incubation period of severe tetanus infection 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 symptoms manifested. The
infection was an efficient intervening cause breaking the connection
between the physical injuries and death. Hence, the crime committed is
physical injuries (Villacorta vs. People, G.R. No. 186412, September 7,
2011). If the victim was infected by tetanus at the time of stabbing, and the
infection is the proximate cause of death, the crime committed is homicide
(People vs. Cornel, G.R. No. L-204, May 16, 1947).
b. Offense punishable under special law - Practicing
medicine without license is an offense punishable under special law but
not afelony within the meaning of Article 4 of RPC. Hence, a quack doctor,
who killed his patient while treating him, is only liable for reckless
imprudence resulting in homicide (People vs. Carmen, G.R. No. 137268,
March 26, 2001).
If the victim accidentally killed is the owner, driver or occupant
of the carnapped motor vehicle, the crime committed is qualified
carnapping or carnapping in the aggravated form under Section 3 of RA
No. 10883. If the victim accidentally killed is not the owner, driver or
occupant of the carnapped motor vehicle, the crimes committed are
simple carnapping and homicide. The concept of carnapping is the same
as that of theft and robbery (People vs. Sia, G.R. No. 137457, Nov. 21,
2001). Although not punishable under RPC, it can be treated as a felony
within the meaning of Article 4 of RPC (See: Dimat vs. People, G.R. No.
181184, January 25, 2012). Hence, the accused is liable for homicide,
which is the direct and natural consequence of simple carnapping.
c. 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). 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).
d. 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)
e. Sense of danger - If a person in committing threat, murder,
rape or robbery creates in the mind of the victim 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 resulting injuries or death (US vs. Valdez, G.R. No.
16486, March 22, 1921; People vs. Toling, G.R. No. L-27097, January 17,
1975; People vs. Castromero, G.R. No. 118992, October 9, 1997; People
vs. Arpa, G.R. No. L-26789, April 25, 1969).
9. Impossible crime - 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 (Intod
vs. Court of Appeals, G.R. No. 103119, October 21, 1992).
Kidnapping for ransom consummates at the precise moment
when the victim was abducted. Receiving ransom payment is not an
element of this crime. What is important is that the victim was kidnapped
for purpose of ransom. Since the crime is already consummated, there is
no basis to say that it is impossible to commit this crime (People vs. Tan,
G.R. No. 95322, March 1, 1993). Moreover, kidnapping is a crime against
liberty and not against person or property.
Firing a gun at the unoccupied bedroom with intention to kill a
victim constitutes impossible crime because it is factually impossible to kill
a victim, who was not in the bedroom (Intod vs. Court of Appeals, G.R.
No. 103119, October 21, 1992). But throwing grenade at the unoccupied
bedroom, where the victim is supposed to be sleeping, constitutes arson if
the bedroom was burned as a consequence.
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 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 discharge of firearm and not making a motion as if to attack). Imminent unlawful aggression must 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).
a. Gender crime - Gender is an element of all crimes against
chastity except acts of lasciviousness. In seduction and consented acts of
lasciviousness, and abduction, the offender must be a man, while the
victim must be a woman. The offender in adultery must be a married
woman, while in concubinage a married man. If the element of gender is
not present in a crime against chastity, it is impossible to commit this
crime (e.g. it is impossible to commit abduction against a person, who is
gay). Despite the impossibility of its commission, the accused is not liable
for impossible crime. To be held liable for impossible crime, the act which
is impossible to commit must constitutes crime against person or
property.However, abduction is a crime against chastity. But the accused
may be held liable for illegal detention.
A person, who has sexual intercourse with a woman not
knowing that she was already dead,is liable for impossible crime since
rape is now a crime against person. However, if he is aware that the
woman is already dead, he is not liable for impossible crime since criminal
intent or propensity to rape, which is the basis of penalizing impossible
crime, is wanting.
If the gender element in rape through sexual intercourse is not
present, the offender is not liable for impossible crime. Although it is
impossible to commit rape through sexual intercourse where the victim is
a gay, such acts constitute acts of lasciviousness.
b. Unfunded check - If the check is unfunded, stealing the
checkand presenting it for payment with the bank constitute impossible
crime. It is factually impossible to accomplish the crime of qualified theft
since the check is unfunded(Jacinto vs. People, G.R. No. 162540, July 13,
2009). If the check is funded, stealing the check and presenting it for
payment with the bank is not impossible crime. Even if the accused failed
to encash the same due to external cause such as apprehension by police
or stop payment, he will be held liable for consummated theft. In theft,
taking property with intent to gain consummates the crime. Actual gain is
not an element thereof. Thus, failure to gain will not prevent the
consummation of the crime (See: People vs. Seranilla, G.R. No. L-54090,
May 9, 1988);
10. Indeterminate offense - Climbing on top of the naked
victim, touching her genitalia and mashing her breastsaresusceptible of
double interpretation (People v. Lamahang). His intention is either to rape
or seduce her. Hence, the accused cannot be held liable for attempted
rape because intent to have sex is not clear. He is only liable for acts of
lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014,
Bersamin).
Inflicting non-mortal wound upon the victim by shooting him
constitutes physical injuries if the accused did not further shoot him to
inflict mortal wounds. The crime is not attempted homicide because failure
to shoot him further shows lack of intent to kill. Moreover, spontaneous
desistance from further shooting to victim to inflict mortal wounds is a
defense in attempted homicide (Pentecostes, Jr. vs. People, GR No.
167766, April 7, 2010). But inflicting mortal wound upon the victim
constitutes frustrated homicide (De Guzman vs. People, G.R. No. 178512,
November 26, 2014, Bersamin) even if the accused desisted from further
shooting him. The fact that the wounds are mortal indicates intent to kill.
Moreover, spontaneous desistance from further shooting is not a defense
in frustrated homicide (People vs. Abella, G.R. No. 198400, October 07,
2013).
11. Self-defense - 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
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 (Rustia vs. People, G.R. No.
208351, October 05, 2016, Bersamin).
12. Battered woman syndrome -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 battererhad not yet committed unlawful
aggression. That is why Battered Woman Syndrome is a defense
notwithstanding the absence of any of the elements for justifying
circumstances of self-defense such as unlawful aggression (Section 26 of
RA No. 9262). This 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).
The three phases of the Battered Woman Syndrome are: (1)
the tension-building phase; (2) the acute battering incident; and (3) the
tranquil, loving or non-violent phase (People vs. Genosa, G.R. No.
135981, January 15, 2004). The basis of the irresistible impulse to make a
defense against the batterer is the womans experiencing two battering
episodes.
The elements of Battered Woman Syndrome as a defense are
as follows: (1) the woman is subjected to cumulative abuse by the victim,
with whom she has marital, sexual or dating relationship; and (2) the
cumulative abuse or battery is the act of inflicting physical harm resulting
to physical and psychological or emotional distress. Since the abuse must
be cumulative, there must be at least two episodes involving the infliction
of physical harm. If the first episode is infliction of physical harm and the
second episode is verbal abuse, the accused cannot avail Battered
Woman Syndrome as a defense.
13. Imbecility and minority Mental retardation includes (a)
idiot, whose mental age is two-year old; (b) imbecile, whose mental age is
seven-year old; (c) moron or feebleminded, whose mental age is twelve-
year old and (d) borderline intelligence (People vs. Butiong, G.R. No.
168932, October 19, 2011 Bersamin; People vs. Bayrante, G.R. No.
188978, June 13, 2012).
In rape, there is a difference between actual age and mental
age. In statutory rape, the actual age of the victim must be under 12 years
old. In rape against a person deprived of reason, the mental age of the
victim is 2 years old (idiot), 7 years old (imbecile), 12 years old
(feebleminded) or above 12 years old but suffering from borderline
intelligence (People vs. Butiong, supra; People vs. Bayrante, supra).
In exempting circumstance, there is a difference between
actual age and mental age. In exempting circumstance of imbecility, what
is important is the mental age of the accused. An idiot, whose mental age
is 2 years, and imbecile, whose mental age is 7 years old (People vs.
Butiong, G.R. No. 168932, October 19, 2011, Bersamin) are exempt from
criminal liability. A feebleminded, whose mental age is 12 years old, is not
exempt from criminal liability since he is not an imbecile (People vs.
Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to mitigating
circumstance of mental illness (People vs. Formigones, G.R. No. L-3246,
November 29, 1950). In exempting circumstance of minority under Section
6 of RA No. 9344, what is important is the chronological or actual age of
the accused. If the actual age of the accused is 18 years old and mental
age is 9 years old, the exempting circumstance of minority and imbecility
shall not be appreciated (People vs. Roxas, G.R. No. 200793, June 04,
2014).
Under Section 5 (b) of RA No 7610, when the child subjected
to sexual abuse is under 12 years of age, the perpetrators shall be
prosecuted for rape and acts of lasciviousness under RPC. For purpose of
Section 5 (b), there is no difference between actual age and mental age.
Hence, the victim whose actual age is 12 years old but her mental age is 9
years old, is considered as a victim under 12 year of age within the
contemplation of Section 5 (b) (People vs. Pusing, G.R. No. 208009, July
11, 2016),
14. Insanity - 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 (People vs. Tibon, G.R. No. 188320, June 29, 2010).
Page 3 of 25
There are two tests (People vs. Formigones, G.R. No. L-3246, November
29, 1950) to determine whether the mental condition of the accused is
exempting or mitigating:
a. Test of cognition Under the test of cognition, the mental
condition of the accused is an exempting circumstance of insanity if there
was a complete deprivation of intelligence in committing the criminal act
(People vs. Bulagao, G.R. No. 184757, October 05, 2011); or mitigating
circumstance of mental illness if there was only a partial deprivation of
intelligence (People vs. Puno, G.R. No. L- 33211, June 29, 1981). 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).
b. Test of volition Under the test of volition, the mental
condition of the accused is a mitigating circumstance of mental illness if
there is complete or partial deprivation of freedom. In sum, if a sex maniac
or homicidal maniac 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 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). Thus, kleptomania is a
mitigating circumstance of mental illness.
Irresistible homicidal impulse in People vs. Bonoan G.R. No.
45130, February 17, 1937, which is an exempting circumstance is not
anymore controlling. Irresistible homicidal impulse, which is based on the
volition test, is only a mitigating circumstance. To exempt a person from
criminal liability due to insanity, the controlling rule is cognition testand not
the volition test(People vs. Opuran, G.R. Nos. 147674-75, March 17,
2004). In several Supreme Court cases, the pleas of insanity of accused
who are suffering from schizophrenia or psychosis were rejected because
of failure to pass the cognition test. (People vs. Medina, G.R. No. 113691,
February 6, 1998; People vs. Pascual, G.R. No. 95029, March 24, 1993).
15. Child in conflict with the law -The rights and privileges of
a child in conflict with the law are as follows:
1. If the accused is 15 years of age or below, minority is an
exempting circumstance (Section 6 of RA No. 9344). Lack of discernment
is conclusively presumed. If the child is above 15 years of age, minority is
an exempting circumstance if he acted without discernment, or privilege
mitigating circumstance if he acted with discernment. This privilege
mitigating circumstance shall be appreciated even if minority was not
proved during the trial and that his birth certificate was belatedly
presented on appeal (People vs. Agacer, G.R. No. 177751, January 7,
2013) and even if the penalty is reclusion perpetua to death (People vs.
Ancajas, G.R. No. 199270, October 21, 2015).
2. Ifthe accused is 15 years of age or below but above 12
years, shallbe considered as a neglected child. Neglected child shall be
mandatorily placed in a youth care facility or Bahay Pag-asa in the
following instances: (a) If the child commits serious crimes such as
parricide, murder, infanticide, rape, kidnapping and serious illegal
detention with homicide or rape, robbery with homicide or rape,
destructive arson, or carnapping where the driver or occupant is killed or
raped or offenses involving dangerous drugs punishable by more than 12
years of imprisonment; and (b) In case of repetition of offenses and the
child was previously subjected to a intervention program and his best
interest requires involuntarily commitment.
In case of commission of serious crime, a petition for
involuntarily commitment shall be filed by social worker in court. In case of
repetitionof offenses, his parents or guardians shall execute a written
authorization for the voluntary commitment. However, if the child has no
parents or guardians or if they refuse or fail to execute such authorization,
the proper petition for involuntary commitment shall be immediately filed
social worker in court; but the child may be subjected to intensive
intervention program supervised by the local social officer instead of
involuntary commitment (Section 20-A and 20-B of RA 9344 as amended
by RA 10630).
3. If the child is found guilty, the court shall place him under
suspended sentence, without need of application instead of pronouncing
judgment of conviction (Section 38 of RA 9344). The law makes no
distinction as to the nature of offense by the child. The Senate debate
discloses that the suspension is applicable to heinous crime (People vs.
Jacinto, G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R. No.
199270, October 21, 2015).
An accused, who is under 18 years of age at the time of the
commission of the crime, is a child in conflict with the law. He will not be
deprived of privileges under the law even though he reaches age of
majority at time of rendition of judgment. Exception: While Section 38 of
RA 9344 provides suspension of sentence can still be applied even if the
child is already 18 years of age at the time of conviction. However,
Section 40 limits the suspension of sentence until the child reaches the
age of 21 (People vs. Gambao, GR No. 172707, October 01, 2013;
People vs. Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs.
People, G.R. No. 176102, November 26, 2014, Bersamin).
3. If the accused is an adult, application for probation must be
filed within the period of perfecting an appeal (Section 4 of PD No. 968 or
Probation Law). However, the accused is a child in conflict with the law,
application for probation may be filed at any time (Section 42 of RA No.
9344). In sum, it can be filed even beyond the period of perfecting an
appeal or even during the pendency of an appeal.
Under Section 9 of PD 968, one, who is sentenced to suffer a
penalty (or maximum indeterminate penalty) of more than 6 years, 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
possession or use of dangerous drug even if the penalty is higher than 6
years of imprisonment. But Section 70 of RA 9165 is not applicable sale of
dangerous drugs. Section 24 of RA No. 9165 disqualifies drug traffickers
and pushers for applying for probations although the accused is a minor.
The law considers the users and possessors of illegal drugs as victims
while the drug traffickers and pushers as predators (Padua vs. People,
G.R. No. 168546, July 23, 2008).
4. 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. Arpon, G.R. No. 183563, December 14, 2011; People vs.
Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No.
176102, November 26, 2014, Bersamin).
5. A convict is entitled to a full or 4/5 credit of his preventive
imprisonment (Article 29 of RPC). However, if the convict is a child in
conflict with the law, he shall be credited in the services of his sentence
the full time spent in actual commitment and detention (Section 41, RA
9344; Atizado vs. People, G.R. No. 173822, October 13, 2010,
Bersamin).
16. Status offense Status offenses such as curfew
violationrefers to offenses which discriminate only against a child, while an
adult does not suffer any penalty for committing similar acts (Section 3 of
RA No. 9344). In sum, a status offense is a crime where minority of the
offender is an element. A child shall not be punished for committing a
status offense (Section 57). Under Section 57-A, local ordinances on
status offenses shall be for the protection of children. For committing
status offense, children recorded as a child at risk shall be brought to their
residence or to any barangay official at the barangay hall to be released to
the custody of their parents instead of being penalized.
17. Exempting circumstance of relationship - The
absolutory cause of relationship under Article 332 of RPCapplies to theft,
swindling and malicious mischief. It does not apply to theft through
falsification or estafa through falsification. It includes step-relationship and
in-laws relationship.There are two viewson whether death of his wife
dissolves the relationship by affinity of the husband with his mother-in-law
for purpose of absolutory cause. The first holds that relationship by affinity
terminates after the death of the deceased spouse, while the second
maintains that relationship continues. 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). The term spouses in Article 332 embraces common-
law spouses. The basis of this ruling is the rule on co-ownership over
properties by common-law spouses (People vs. Constantino, No. 01897-
CR, September 6, 1963, 60 O.G. 3603).
18. 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
Page 4 of 25
evidence already presented by the prosecution is enough to cause his
conviction (People vs. Montinola, G.R. No. 131856-57, July 9, 2001).
19. Allegation of aggravating circumstances - It is now a
requirement that the aggravating or 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). This procedural rule has a retroactive
application because of pre reo (People vs. Dadulla, G. R. No. 172321,
February 9, 2011, Bersamin).
20. Nighttime - Nighttime is aggravating if the accused took
advantage of the darkness of the night (People vs. Banhaon, G.R. No.
131117, June 15, 2004) or silence of the night e.g. the accused take
advantage of the fact that the victims and neighbors were sleeping
(People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004).
21. Band - In robbery, band is a special aggravating
circumstance under Article 295 of RPC. In robbery with homicide or rape,
band is an ordinary aggravating circumstance under Article 14.
22. Exploitation of minor The special aggravating
circumstance of exploitation of minor under RA No. 9344is present if the
accused makes use, takes advantage of, or profits from the use of
children, or abuses his authority over the child or takes advantage of the
vulnerabilities of the child with abuse of confidence or induce, threaten or
instigate the commission of the crime. The concept of exploitation of
children is comprehensive enough to cover the circumstance of with the
aid of minor under 15 years of age under RPC.
23. Conspiracy - 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).
a. Disassociation - 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). A conspirator, who ran away from the scene of the crime prior to
the commission of robbery with homicide by his co-conspirator, is not
liable because the former dissociated himself from the conspiracy.
Conspirators are all liable for robbery although not all profited
and gained from the robbery. When a conspirator committed homicide by
reason of or on the occasion of the robbery, his co-conspirators are liable
for special complex crime of robbery with homicide, unless they
endeavored to prevent the killing (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) or they cannot prevent the
killing since they are not aware thereof (People vs. Corbes, G.R. No.
113470, March 26, 1997). This rule is applicable to special complex crime
of kidnapping with rape (People vs. Anticamaray, GR No. 178771, June
08, 2011) or robbery with rape (People v. Suyu, G.R. No. 170191, August
16, 2006; People v. Canturia, G.R. No. 108490 June 22, 1995).
b. Multiple rapes - If there is conspiracy to commit rape,
each of conspirators 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).
c. Offense under 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)
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, died, 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 between
the dead public officer and private individual, the latter can still be
convicted of violation of RA No. 3019 (People vs. Go, GR NO. 168539,
March 25, 2014). However, if 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).
Mayor, treasurer and planning coordinator approved the
overpayments in favor of a private individual for the construction of public
market. The public officers caused undue injury to the government
through manifest partiality and evident bad faith in violation of Section 3
(e) of RA No. 3019. The private individual, who was overpaid, is also liable
on the basis of conspiracy and Go vs. Fifth Division of the Sandiganbayan
(Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010; Uyboco vs.
People, G.R. No. 211703, December 10, 2014).
24. Accomplice - Lending weapon such a gun to a killer for
purpose of killing a specific person such as Pedro is an act of accomplice.
But if the killer used the weapon in killing a different person such as Juan,
the lender is not liable as an accomplice. To be held liable as an
accomplice, it is important that that he knows and concurs in the criminal
design of the principal (community of design) and participates before or
during the commission of the crime by supplying moral or material aid in
an efficacious way. In this case, the lender concurred in the killing of
Pedro but not Juan. Hence, he is not liable as an accomplice. If the killer
used another weapon such as knife instead of the gun borrowed in killing
Pedro, the lender is not liable as an accomplice. Although the lender
concurred in the killing of Pedro, he did not supply the killer material or
moral aid in an efficacious way since the weapon used is not the one
borrowed from him.
25. Fencing In fencing, the property, which the accused
possesses with intent to gain, must be derived from the proceeds of theft
or robbery (Ong vs. People, GR No. 190475, April 10, 2013). The concept
of carnapping is the same as that of theft or robbery (People vs. Sia, G.R.
No. 137457, November 21, 2001). Thus, carnapping can be considered as
within the contemplation of the word theft or robbery in PD No. 1612
(Dimat vs. People, G.R. No. 181184, January 25, 2012). If the property is
derived from the proceeds of malversation or estafa, fencing is not
committed. But the accused can be held liable as an accessory if he
profited or assisted other to profit from this misappropriated property.
Actual knowledge that the property is stolen is not required.
Fencing is committed is the accused should have known that the property
is stolen taken into consideration the attending circumstances such as (1)
the price of the property is so cheap; (2) expensive jewelry is being
offered for sale at midnight in a street; (3) accused knew that the car he
bought was not properly documented (Dimat vs. People, supra); or (4)
new tires are being peddled in the streets by an unknown seller (Ong vs.
People, supra). Furthermore, mere possession of stolen property shall be
prima facie evidence of fencing (Section 6 of PD No. 1612).
26. Obstruction of justice Obstruction of justice can only be
committed by a person other than the one being investigated or tried in a
criminal proceeding. Although this is not expressly required in PD No.
1829 to make one liable for obstruction of justice, a principal himself
cannot be held liable for obstruction of justice (Angeles vs. Gaite, G.R No.
165276, November 25, 2009).
The criminal actor, who threwthe body of murdered victim into
the river to destroy the corpus delicti, is liable for murder qualified by the
circumstance of employment of means to afford impunity.The one who
assisted in in throwing the body is liable as an accessory to murder for
destroying the body of the crime to prevent its discovery (People vs.
Devaras, G.R. Nos. 100938-39, December 15, 1993)or a principal in the
crime of obstruction of justice for destroying it to impair its availability as
evidence in a criminal proceeding.
The accused cannot be prosecuted both as an accessory for
murder and as principal for obstruction of justice. The penalty prescribed
for obstruction of justice under PD No. 1829 is prision correccional in its
maximum period unless other law prescribed a higher penalty. Thus, the
offender may be prosecuted for murder as accessory with the penalty of
prision mayor or for obstruction of justice as principal also with the penalty
Page 5 of 25
of prision mayor, since this penalty is higher than that prescribed under
PD No. 1829. The intention of the law in prescribing a fixed penalty or that
provided by other law such as RPC, whichever is higher, is not to
prosecute the offender for obstruction of justice and for other crime arising
from the same act such as destroying the body of the crime.
After the discovery of illegal possession of lumber, the accused
unlawfully took the truckused to commit the crime from the authorities. He
is not liable as an accessory since he did not conceal the instrument of the
crime for the purpose of preventing the discovery thereof. Crime was
already discovered when the concealment was made. However, he is
liable for obstruction of justice for concealing the truck to impair its
availability as evidence in the criminal proceeding for illegal possession of
lumber (Padiernos vs. People, G.R. No. 181111, August 17, 2015).
To be held liable as an accessory, the person harbored,
concealed, or assisted to escape must be principal of the crime and the
crime committed must be treason, parricide, murder,or an attempt to take
the life of the Chief Executive, or other crime where act was committed
with abuse of public function or the principal is a habitual delinquent. To
be held liable as a principal in obstruction of justice, the one harbored,
concealed, or assisted to escape is any person(such as principal or
accomplice)and the crime committed is any offense under existing law.
The exempting circumstance of relationship under Article 20 of
RPC can be appreciated in favor of an accessory to a felony but not in
favor of an accused in the crime of obstruction of justice since he is being
prosecuted as principal and not as an accessory.
Light felony is punishable except when the accused is merely
an accessory (Article 16 of RPC) or when it is at the attempted or
frustrated stage unless it is a crime against property or person (Article 7).
However, obstruction of justice can be committed even though the crime
under investigation is a light felony.
An accused can be convicted as an accessory to a felony
although the principal was not convicted because the latter was at large,
unidentified or dead (Vino vs. People, G.R. No. 84163, October 19, 1989).
The corresponding responsibilities of the principal, accomplice, and
accessory are distinct from each other. As long as the commission of the
offense 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, G.R. No. 171222, February 18,
2015).
27. Credit of preventive imprisonment Credit for preventive
imprisonment is full if the detention prisoner executed detainees
manifestation, which is a written declaration of a detained prisoner, with
the assistant of a counsel, stating his willingness 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.
Credit for preventive imprisonment is 4/5 if the detention
prisoner executed detainees waiver, which is 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.
There is no credit if the accused is recidivist; has been
convicted previously twice or more times of any crime; or has failed to
surrender voluntarily before a court of law upon being summoned for the
execution of his sentence (Article 29 of RPC as amended by RA No.
10592).
If the offender 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, which provides that the full time spent in actual commitment
and detention of juvenile delinquent shall be credited in the services of his
sentence.
28. Immediate release If the period of preventive
imprisonment is equal to the imposable maximum imprisonment of the
offense charged, the detention prisoner shall be released immediately
without prejudice to the continuation of the case, except for the following:
1) recidivist; 2) habitual delinquent; 3) escapee; and 4) person charged
with heinous crimes. Such period shall include good conduct time
allowance (Article 29 of RPC as amended by RA No. 10592).
29. Special time allowance for loyalty (STAL) If detention
prisoner or convicted prisoner escapes during the calamity, and
subsequently surrenders within 48 hours from the time the President
announces the passing away of such calamity, he is entitled to 1/5 special
time allowance for loyalty (STAL) under Article 98 of RPC as amended by
RA No. 10592; if the convicted prisoner did not surrender within the
period, he is liable for evasion of sentence under Article 158 of RPC
punishable by penalty equivalent to one-fifth of the time still remaining to
be served under the original sentence, which in no case shall exceed six
months; if the detention prisoner did not surrender within the period, he is
not liable for evasion of sentence. Only convicted prisoner can commit
evasion of service of sentence because a detention prisoner is not serving
sentence, which he can evade.
In case of the prisoner chose to stay in the place of his
confinement notwithstanding the existence of a calamity, he is entitled to
2/5 STAL (Article 98 of RPC as amended by RA No. 10592). 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.
Hence, prisoners, who did not escape, are entitled to a higher special time
allowance.
However, prisoner is not entitled to STAL if he has committed
other offense or any act in violation of the law.
30. Special complex crime Raping the victim or inserting
instrument in her anal orifice after treacherously inflicting mortal wounds 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. The crime committed
is murder qualified by treachery and rape shall be regarded either as
ignominy or cruelty (People vs. Laspardas, G.R. No. L-46146, Oct. 23,
1979) or sexual assault shall be treated as cruelty (People vs. Bernabe,
G.R. No. 185726, October 16, 2009).
a. Special rule for kidnapping with homicide - 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 accused is liable for a special complex crime of kidnapping with
homicide (People vs. Mercado, G.R. No. 116239, November 29, 2000;
People vs. Ramos, G.R. No. 118570, October 12, 1998; People vs.
Larranaga, 138874-75, February 3, 2004; People vs. Montanir, GR No.
187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949, July 23,
2014). However, if the derivation of liberty is just incidental to the
transportation of the victim to the place where he will be executed, the
crime is murder. Kidnapping with homicide is not committed because of
lack of intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655,
July 22, 2009).
b. Doctrine of absorption - In robbery with homicide, all
other felonies such as rape, intentional mutilation, usurpation of authority,
or direct assault with attempted homicide are integrated into this special
complex crime. This special complex crime is committed as long as death
results by reason or on occasion or robbery without reference or
distinction as to the circumstances, causes or modes or persons
intervening in the commission of the crime(People vs. De Leon, GR No.
179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05,
2016).
c. Homicide component - In robbery with homicide, it is
immaterial that the victim of homicide is a bystander (People vs. Barut,
G.R. No. L-42666 March 13, 1979), a responding police (People vs.
Pelagio, G.R. No. L-16177, May 24, 1967) or one of the robbers (People
vs. De Leon, GR No. 179943, June 26, 2009;People vs. Jugueta, G.R.
No. 202124, April 05, 2016).
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. In contrast, 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 rape,
where the victim of the homicide may be a person other than the rape
victim (People vs. Villaflores, G.R. No. 184926, April 11, 2012, Bersamin;
People vs. Laog, G.R. No. 178321, October 5, 2011).
In robbery with homicide, it is immaterial that victim is killed by
the responding police and not by the robber (People vs. Ombao, G.R. No.
L-30492, February 26, 1981). But in attempted robbery with homicide, the
Page 6 of 25
offender must be guilty of both crimes. Hence, attempted robbery with
homicide is not committed where the victim was killed by a co-passenger
and not by the robber (People vs. Manalili, G.R. No. 121671, August 14,
1998).
Ordinarily, homicide means killing another person. In sum, the
person responsible for the death of the victim must be the offender. But in
the case of People vs. Arpa, G.R. No. L-26789, April 25, 1969, the victim
himself, who jumped from boat, is responsible for his own death, and yet,
the SC convicted the accused of robbery with homicide. In other words,
death caused by the victim himself is considered as homicide, which is a
component of robbery with homicide. Hence, suicide or death caused by
the victim herself can be considered as homicide as a component of
special complex crime of rape with homicide.
d. Violence or intimidation in taking the property - If the
taking of property is not committed by means of violence or intimidation,
Article 294 of RPC is not applicable. Taking without violence or
intimidation constitutes theft. If after the taking of property by means of
violence or intimidation, the robber killed a responding police officer, the
former is liable for robbery with homicide (People vs. Pelagio, G.R. No. L-
16177, May 24, 1967). If after the taking of the roasters without violence
or intimidation, the thief killed responding police officer, he is liable for
theft and direct assault with homicide (People vs. Jaranilla, G.R. No. L-
28547, February 22, 1974). If after the snatching of the complainants bag
without violence or intimidation, a co-robber crashed the getaway
motorcycle and died, the accused is only liable for theft (People vs.
Concepcion, G.R. No. 200922, July 18, 2012).
e. Direct connection - After consummation of robbery,
passengers reported the matter to the police authorities. During the
manhunt operation, one of the police officers was killed by a robbery. The
crime committed is not robbery with homicide since the connection
between the two crimes was not a direct connection" (People vs.
Quemeggen, G.R. No. 178205, July 27, 2009).
f. Occupation of real property - In simple robbery under
Article 294 of RPC, violence and intimidation is employed to take property.
In occupation of real property under Article 312, violence or intimidation is
employed to occupy the real property. If the accused has already
occupied the house of the complainant, and he used violence or
intimidation to prevent the said owner from reoccupying the property, the
crime committed is not occupation of real property. The accused may be
held liable of grave threat, grave coercion or discharge of firearm
depending upon the circumstance of the case.
g. Robbery by using force upon thing - Breaking the window
of a house and taking property inside without entering constitutes theft.
Breaking the window is not a circumstance that will qualify the taking into
robbery by using force upon thins since this crime requires that the
breaking of window is a means to enter the building (People vs. Adorno,
CA 40 O.G. 567; People vs. Jaranilla. G.R. No. L-28547, February 22,
1974). Breaking the window to commit theft is an ordinary aggravating
circumstance.
Using picklock to open a locked cabinet and taking property
therein is not robbery by using force upon thing. To constitute robbery by
using force upon thing, the picklock must be used to open the building and
not merely a lockedfurniture (US vs. Macamay, G.R. No. 11952,
September 25, 1917). Entrusted key is not a false key in robbery by using
force upon thing.
h. Complex crime of two robberies - In Sebastian case,
when the elements of both robbery by means of violence and intimidation
and robbery by using force upon thing are present, the accused shall be
held liable of the former since the controlling qualification is the violence
and intimidation. However, the penalty for robbery in inhabited house if the
robber is armed is graver than simple robbery. Hence, by hurting the
victim, the offender shall be penalized with a lighter penalty. Since
Sebastian principle defies logic and reason, People vs. Napolis, G.R. No.
L-28865, February 28, 1972 abandoned it. Under the present rule, when
the elements of both robbery by means of violence and intimidation and
robbery by using force upon thing are present, the crime is a complex one
under Article 48 of said Code. Hence, the penalty for robbery in inhabited
house shall be imposed in its maximum period (People vs. Disney, G.R.
No. L-41336, February 18, 1983; Fransdilla vs. People, GR No. 197562,
April 20, 2015, Bersamin). If the entry into the dwelling is without force
upon thing, and the property was taken by means of violence or
intimidation, the crime committed is robbery by means of violence or
intimidation with aggravating circumstance of disregard of dwelling
(People vs. Tejero, G.R. No. 128892 June 21, 1999; People vs.
Evangelio, G.R. No. 181902, August 31, 2011). When the elements of
both robbery with homicide and robbery by using force upon thing
(unlawful entry) are present, the former shall absorb the latter. In sum,
robbery by using force upon thing committed on occasion of robbery by
means of violence or intimidation shall be integrated into the special
complex crime of robbery with homicide (People vs. De Leon, GR No.
179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05,
2016). But aggravating circumstances of disregard of dwelling and
unlawful entry shall be both appreciated (People vs. Lamosa, G.R. No.
74291-93, May 23, 1989).
31. Compound crime - The single act of rolling the hand
grenade on the floor of the gymnasium which resulted in the death of
victims constituted a compound crime of multiple murders (People vs.
Mores, GR No. 189846, June 26, 2013). Wherethe use of grenade render
the victim defenseless, use of explosives shall be considered as a
qualifying circumstance because this is the principal mode of attack. Thus,
treachery will be relegated merely as a generic aggravating circumstance
(People vs. Comadre, et al., G.R. No. 153559, June 8, 2004). 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).
a. Single act treated as several acts - Single act of pressing
the trigger of Thompson or armalite is treated as several acts as many as
there are bullets fired from gun. Because of special mechanism of
Thompson, the single act of pressing its trigger will cause the continuous
firing of bullets. Thus, accused is liable as many homicides as there are
victims (People vs. Desierto, (C.A.) 45 O.G. 4542; People vs. Sanchez,
G.R. No. 131116, August, 27, 1999; People vs. Tabaco, G.R. Nos.
100382-100385 March 19, 1997; People v. Vargas, Jr., G.R. No. 86728,
April 6, 1990; People vs. Bermas, G.R. Nos. 76416 and 94312 July 5,
1999).
b. Variance rule - The body of the information charged the
accused of compound crime with murder and attempted murder since two
victims were hit by a single shot. The evidence shows that murder and
attempted murder are separate crimes since the two victims were hit by
several shot. Under the variance rule, if the crime alleged in the
information varies with the crime proven with evidence, the accused shall
be convicted of the crime alleged or proven whichever the lesser. Thus,
accused shall be convicted of complex crime, which is lesser compared to
two crimes (People vs. Bernardo, GR No. 198789, June 03, 2013).
c. Several acts - Several acts in killing several victims do not
constitute a compound crime. Article 48 requires a single act constituting
two or more crimes (People vs. Toling, G.R. No. L-27097, January 17,
1975). Exceptions: Several acts in killing several victims under a single
criminal impulse (People vs. Lawas, L-7618-20, June 30, 1955) or under
single criminal purpose (People vs. Abella, G.R. No. L-32205 August 31,
1979) shall be considered as a single act. Hence, it is a compound crime.
The single criminal impulse rule under the Lawas doctrine is
more of an exception than the general rule (People vs. Remollino, G.R.
No. L-14008, September 30, 1960). Article 48 on compound crime speaks
of single act, but not single criminal impulse (People vs. Pineda, G.R. No.
L-26222, July 21, 1967). In Lawas case, the SC was merely forced to
apply Article 48 because of the impossibility of ascertaining the number of
persons killed by each accused (People vs. Nelmida, G.R. No.
184500. September 11, 2012). Thus, the Lawas doctrine should not be
applied if there is conspiracy since the number of victims actually killed by
each conspirator is not anymore material if there is conspiracy (People vs.
Elarcosa, G.R. No. 186539, June 29, 2010).
The single criminal purpose rule under the Abella case was
adopted in consideration of the plight of the prisoners; hence, it is only
applicable if killings were commit by prisoners against their fellow
prisoners (People vs. Pincalin, G.R. No. L-38755, January 22, 1981;
People vs. Nelmida, G.R. No. 184500, September 11, 2012
32. Complex crime proper - Stabbing after the rape is a
separate crime of frustrated homicide. This is not a complex crime proper
since the latter is not necessary to commit the former (People vs. Isla,
G.R. No. 199875, November 21, 2012).
Page 7 of 25
 a. Abduction and 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.
If forcible abduction is a necessary means to commit rape, this
is a complex crime proper under Article 48 of RPC. However, if 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 complex
crime of 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. Buhos, G.R. No. L-40995, June 25, 1980; People vs.
Tami, G.R. Nos. 101801-03, May 02, 1995; 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.
If the accused abducted the victim without clear showing of
lewd design, the crime committed is kidnapping 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 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 with homicide. 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 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).
If the accused was molesting the victim immediately upon
abduction, that is proof that abduction is committed with lewd design
(People vs. Jose, supra). After eating the food given by accused, the
victim became dizzy and thereafter, she passed out. When she regained
consciousness, she notices that she and accused are naked inside a
room. She was raped and detained for 6 days. The crime committed is
rape through forcible abduction (People vs. Amaro, G.R. No. 199100, July
18, 2014).
b. Complex crime and special complex crime - In a
composite crime, the composition of the offenses is fixed by law, but 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. In a composite crime, the
penalty for the specified combination of crimes is specific, but in a
complex or compound crime the penalty is that corresponding to the most
serious offense, to be imposed in the maximum period. A light felony that
accompanies the commission of a complex or compound crime may be
made the subject of a separate information, but a light felony that
accompanies a composite crime is absorbed (People vs. Esugon, G.R.
No. 195244, June 22, 2015, Bersamin).
33. Doctrine of absorption - If murder, kidnapping or arson
committed in furtherance of rebellion, they will be divested of their
character as common crimes and will assume the political complexion of
rebellion. Hence, rebellion absorbs these crimes (People vs. Geronimo,
G.R. No. L-8936, October 23, 1956; People vs. Hernandez, G.R. Nos. L-
6025-26, July 18, 1956; Enrile vs. Salazar, G.R. No. 92163 June 5, 1990).
Doctrine of absorption is applicable to coup detat for being a political
crime because the purpose of coup plotter is to seize or diminish state
power (Gonzales vs. Abaya, G.R. No. 164007, August 8, 2006, concurring
opinion by Justice Callejo).
Membership in CPP-NPA alone will not establish political
motivation behind the killing for purpose of convicting the killers for
rebellion (People vs. Lovedioro, G.R. No. 112235, November 29, 1995;
People vs. Solongan, G.R. No. 137182, April 24, 2003). But membership
in a liquidation squad and killing a government officer is sufficient to
establish political motivation (People v. Dasig,G.R. No. 100231. April 28,
1993).
RA No. 6968 eliminated the phrases "engaging in war against
the forces of the government", "committing serious violence" and
destroying property in Article 135 of RPC. These modes of committing
rebellion deleted by RA No. 6968 were used by the SC in justifying the
doctrine of absorption. 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 public and armed uprising, which
is an element of rebellion in Article 134 (Regalado). Hence, the doctrine of
absorption is still good. The incidents in Lovedioro case, and Solongan
case happened after RA No. 6968, and yet, the SC is still applying the
doctrine of absorption.
a. Sedition - Doctrine of absorption is not applicable to
sedition. There is neither law nor jurisprudence which can allow the
absorption of murder and kidnapping by sedition. The absorption principle
in the cases of Hernandez and Geronimo cannot properly be invoked as
authority since those two cases involved rebellion and not sedition
(People vs. Hadji, G.R. No. L-12686, October 24, 1963). Moreover, public
and tumultuous uprising for political or social purpose, which is the
essence of sedition, does not require killings, burning of properties and
extortions.
b. Incidental deprivation of liberty - If the principal intention
of the offenders is to rob the victims, and the deprivation of their liberty is
just incidental to the prevention of the responding police officers from
arresting them, the crime committed is robbery, which absorbed
kidnapping and serious illegal detention (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).
34. Delito 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). The following are delito continuado: (1)
several acts of taking roasters owned by different owner under a single
criminal impulse to take them all in violation of a single penal provision,
and that is Article 308 of RPC (Note: This is also called single larceny rule;
People vs. Jaranilla, G.R. No. L-28547, February 22, 1974); and
(2)several acts of taking away by force the valuables of the employees
working in Energex gasoline station committed under a single criminal
intent to commit robbery in that place in violation of a single penal
provision, and that is Article 294 of RPC (People vs. De Leon, GR No.
179943, June 26, 2009).
Accused inserted his penis thrice into the private part of victim
for purpose of changing position. The three penetrations motivated by a
single criminal intent to satisfy his lust in violation of single penal provision
(Article 266-A of RPC) constitute a continued crime of rape (People vs.
Aaron, G.R. Nos. 136300-02, September 24, 2002). Accused inserted his
penis thrice into the private part of victim for purpose of resting for five
minutes. He satisfied his lust every time he would withdraw his penis to
rest. Since the three penetrations were motivated by separate three
Page 8 of 25
criminal impulse to satisfy his lust, three separate crimes of rape are
committed (People vs. Lucena, GR No. 190632, February 26, 2014).
Foreknowledge doctrine - There is no delito continuado
where the accused when he committed the first threat against the victim
has no foreknowledge that he will chance upon the second and third
victims to commit the second and third threat. Without such
foreknowledge, three threats could not be said to have been committed
under a single criminal impulse, which is the basis of applying delito
continuado principle. 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).
35. Incorrect penalty 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 (De Castro vs. People, G.R. No. 171672, February 02,
2015, Bersamin).
In Fransdilla vs. People, GR No. 197562, April 20, 2015,
Bersamin, the trial judge fixed the indeterminate sentence at
"imprisonment of 12 years and 1 day to 14 years and 8 months
of reclusion temporal as minimum to 17 years, 4 months and 1 day to 20
years of reclusion temporal as maximum". This is a patent elementary
error. Considering that the clear objective of the ISLAW is to have the
convict serve the minimum penalty before becoming eligible for release on
parole, both the minimum and the maximum penalties must
be definite, not ranging. This objective cannot be achieved otherwise, for
determining when the convict would be eligible for release on parole
would be nearly impossible if the minimum and the maximum were
as indefinite as the RTC fixed the indeterminate sentence. Indeed, that the
sentence is an indeterminate one relates only to the fact that such
imposition would leave the period between the minimum and the
maximum penalties indeterminate "in the sense that he may, under the
conditions set out in said Act, be released from serving said period in
whole or in part."
In People vs. Fontanilla, G.R. No. 177743, January 25, 2012,
Bersamin - The trial court sentenced the accused to suffer reclusion
perpetua to death for murder. This is erroneous. Reclusion perpetua and
death should not be imposed as a compound, alternative or successive
penalty for a single felony. In short, the imposition of one precluded the
imposition of the other.
Article 64 of RPC provides the rules on application of divisible
penalty. Under this provision, the penalty prescribed for a felony shall be
applied in its proper imposable period based on the presence of modifying
circumstances.
Under Article 349 of RPC, the penalty for bigamy is prision
mayor. In the absence of modifying circumstances, prision mayor
pursuant to Article 64 shall be applied in its medium period, which ranges
from 8 years and 1 day to 10 years. Applying the Islaw, the minimum of
the indeterminate sentence should be within the range of prision
correccional, the penalty next lower than that prescribed for the offense,
which is from 6 months and 1 day to 6 years. Accordingly, the
indeterminate sentence of 2 years and 4 months of prision
correccional, as minimum, to 8 years and 1 day of prision mayor as
maximum is proper (Lasanas vs. People, G.R. No. 159031, June 23,
2014, Bersamin).
Under Article 249 of RPC, the penalty for homicide is
reclusion temporal. In the absence of any modifying circumstances,
reclusion temporal shall be applied in its medium period, which ranges
from 14 years, 8 months and 1 day to 17 years and 4 months. Applying
Article 64, within the limits of the medium period of reclusion temporal,
the courts shall determine the extent of the penalty according to the
number and nature of the aggravating and mitigating circumstances and
the greater or lesser extent of the evil produced by the crime. Thus, the
court could not impose the highest penalty of the medium period
of reclusion temporal, and that, is 17 years and 4 months without
specifying the justification for so imposing. Without proper justification,
the court should impose the lowest penalty of the medium period of
reclusion temporal, and that is, 14 years, 8 months. Since ISLAW is
applicable, 14 years, 8 months shall be considered as the maximum
penalty while the minimum penalty shall be fixed within the limits of
prision mayor, which ranges from 6 years and 1 day to 12 years. Hence,
the accused is sentenced to suffer 10 years of prision mayor as
minimum indeterminate penalty to 14 years, 8 months of reclusion
temporal as maximum penalty (Ladines vs. People, G.R. No. 167333,
January 11, 2016, Bersamin).
36. Four indivisible penalty - There are four kinds of divisible
penalty, which are governed by Article 64, to wit: (1) penalty composed of
three periods fixed in accordance with Article 76; (2) penalty not
composed of three periods computed in accordance with Article 65; (3)
complex penalty under Article 77, par. 1; and (4) penalty without specific
legal form under Article 77, par. 2.
a. Penalty containing three periods Article 76 of RPC
expressly fixed the range of the period for reclusion temporal, prision
mayor, temporary disqualification, prision correccional, destierro,
suspension, arresto mayor, and arresto menor. To find the range of the
periods of any of the afore-said penalties, one will simply read Article 76. If
the crime committed is homicide and there is one mitigating circumstance
of confession, the prescribed penalty of reclusion temporal shall be
applied in its minimum period because of Article 64. Article 76 expressly
states that the range of the minimum period of reclusion temporal is from
12 years and 1 day to 14 years and 8 months. Within the range of this
period, the maximum indeterminate penalty shall be fixed.
The range of the minimum, medium and maximum periods
fixed in accordance with Article 76 is one-third equal portion of the
respective penalties except arresto mayor. Under Article 76, the minimum
period of arresto mayor ranges from 1 month and 1 day to 2 months;
medium period ranges from 2 month and 1 day to 4 months; and
maximum period ranges from 4 months and 1 day to 6 months. Hence,
the time included in the duration of the minimum period of arresto mayor is
only one month while that of the medium and maximum is two months.
b. Penalty not composed of three periods - Penalties with
divisible duration, the periods of which are not expressly mentioned in
Article 76 are called penalties not composed of three periods; since
Article 76 has not fixed the duration of their periods, they must be
computed in accordance with Article 65. Under this provision, the time
included in the duration of penalty shall be divided into three equal
portions and periods shall be formed from each portion.
The penalty for malversation under paragraph 2 of Article 217
of RPC is prision mayor in its minimum and medium period. The range of
this penalty is not found in Article 76. Considering that this penalty is not
composed of three periods, the time included in the penalty prescribed
should be divided into three equal portions, which each portion forming
one period, pursuant to Article 65 (Zafra vs. People, G.R. No. 176317,
July 23, 2014, Bersamin).
The duration of prision mayor in its minimum and medium
period is 6 years and 1 day to 10 years. To determine the time included
in the duration, deduct one day and the lower limit of the prescribed
penalty from its upper limit.
10 years -------------------upper limit
- 6 years and 1 day ------- lower limit
- 1 day
--------------------------
4 years ------- time included in the duration of penalty
Four years, which is the time included in the duration, shall be divided
into three equal portions.
4 years
3
-------------------------
1 year and 4 months --------- one third portion of the penalty
The minimum, medium and maximum periods shall be formed
out the 3 equal portions of the penalty. The time included in the duration of
each period is 1 year and 4 months.
6 years
+1 year and 4 months
----------------------------
7 years and 4 months
+ 1 year and 4 months
----------------------------
8 years and 8 months
Page 9 of 25
 +1 year and 4 months
-----------------------------
10 years
Thus, the minimum period of the prescribed penalty of prision
mayor in its minimum and medium periods ranges from 6 years and 1
day to 7 years and 4 months; its medium period ranges from 7 years, 4
months and 1 day to 8 years and 8 months; its maximum period rages
from 8 years, 8 months and 1 day to 10 years (Zafra vs. People, G.R. No.
176317, July 23, 2014, Bersamin).
c. Complex penalty Complex penalty is composed of three
distinct penalties. The periods of complex penalty is formed in accordance
with Article 77, par. 1. Applying this provision, each of the components of
the complex penalty shall form a period; the lightest of them shall be the
minimum, the next the medium, and the most severe the maximum period.
Reclusion temporal to death prescribed for treason committed
by resident alien under Article 114 of RPC is a complex penalty. This
penalty is composed to three distinct penalties, namely: reclusion
temporal, reclusion perpetua and death penalty. Out of these three
components, periods shall be formed in accordance with Article 77, par. 1.
Thus, reclusion temporal, which is the lightest of the three, shall be
minimum period of penalty of reclusion temporal to death; reclusion
perpetua, which is the next penalty, shall be the medium period; death
penalty, which is the most severe, shall be the maximum period. Thus, in
the absence of modifying circumstances, reclusion temporal to death
prescribed for treason shall be applied in its medium period, and that is,
reclusion perpetua.
Prision correccional in its maximum period to prision mayor in
its medium period prescribed for simple robbery under Article 294 of RPC
is a complex penalty under since it composed of three distinct penalties.
Thus, prision correccional in its maximum period, which is the lightest of
the three, shall be minimum period of this prescribed penalty. Prision
mayor in its minimum period, which is the next penalty, shall be the
medium period. Prision mayor in its medium period, which is the most
severe, shall be the maximum period. In sum, prision correccional in its
maximum period to prision mayor in its medium period prescribed for
robbery shall be broken down as follows:
Minimum: Prision correccional in its maximum period
(4 years, 2 months and 1 day to 6 years)
Medium: Prision mayor in its minimum period
(6 years and 1 day to 8 years)
Maximum: Prision mayor in its medium period
(8 years and 1 day to 10 years)
See: People vs. Dela Cruz, G.R. No. 168173, December 24, 2008, En
Banc, People vs. Barrientos, G.R. No. 119835, January 28, 1998, En
Banc, People vs. Castillo, G.R. No. L-11793, May 19, 1961, En Banc,
People vs. Diamante, G.R. No. 180992, September 04, 2009, and People
vs. Lumiwan, G.R. Nos. 122753-56, September 07, 1998.
Reclusion temporal in its medium period to reclusion perpetua
prescribed for sexual abuse under Section 5 (b) of RA No. 7610 is a
complex penalty since it composed of three distinct penalties. Applying
Article 77, par. 1, this complex penalty can be broken down as follows:
Minimum: Reclusion temporal in its medium period
(14 years, 8 months and 1 day to 17 years and 4
months)
Medium: Reclusion temporal in its maximum period
(17 years, 4 months and 1 day to 20 years)
Maximum: Reclusion perpetua
See: People vs. Morante, G.R. No. 187732, November 28, 2012
d. Penalty without specific legal form Reclusion
temporal to reclusion perpetua prescribed for mutilation under Article 262
is a penalty without a specific form (People vs. Romero, G. R. No.
112985, April 21, 1999). The duration of its periods is not fixed by Article
76. This penalty cannot be divided into three equal portions in accordance
with Article 65 since it has an indivisible component, and that, is reclusion
perpetua. It is not a complex penalty under Article 77, par. 1 since it
merely composed of two distinct penalties. Thus, its periods shall be
determined in accordance with Article 77, par. 2, which provides that the
periods shall be distributed, applying for analogy the prescribed rules.
Applying Article 77, par. 1 by analogy, the maximum period shall be
formed out of the most severe penalty, and that is, reclusion perpetua.
Applying Article 65 by analogy, the duration of reclusion temporal shall be
divided into two equal portions and minimum and medium periods shall be
formed from each portion. Applying Article 77, par. 2, reclusion temporal
to reclusion perpetua is broken down as follows:
Minimum: Lower half of reclusion temporal
12 years and 1 day to 16 years
Medium: Higher half of reclusion temporal
16 years and 1 day to 20 years
Maximum: Reclusion perpetua
See: People vs. Macabando, G.R. No. 188708, July 31, 2013; People vs.
Romero, G. R. No. 112985, April 21, 1999; Gonzales vs. People, G.R. No.
159950, February 12, 2007; and People vs. Oliva, G.R. No. 122110,
September 26, 2000
Reclusion temporal in its maximum period to reclusion
perpetua prescribed for malversation under Article 217 is a penalty without
specific form. The duration of its periods is not fixed by Article 76. This
penalty cannot be divided into three equal portions in accordance with
Article 65 since reclusion perpetua component is not divisible. It is not a
complex penalty under Article 77, par. 1 since it merely composed of two
distinct penalties. Thus, its periods shall be determined in accordance with
Article 77, par. 2. Applying this provision, the maximum period shall be
formed out of the most severe penalty, and that is, reclusion perpetua.
The duration of reclusion temporal in its maximum period shall be divided
into two equal portions, and minimum and medium periods shall be
formed from each portion. In sum, reclusion temporal in its maximum
period to reclusion perpetua is broken down as follows:
Minimum: Lower half of reclusion temporal in its maximum
period
17 years, 4 months and 1 day to 18 years and 8
months
Medium: higher half of reclusion temporal in its maximum
period
18 years, 8 months and 1 day to 20 years
Maximum: Reclusion perpetua
See: Estepa vs. Sandiganbayan, G.R. No. 59670, February 15, 1990,
Torres vs. People, GR No. 175074, August 31, 2011, Cabarlo vs. People,
G.R. NO. 172274, November 16, 2006; Mesina vs. People, G.R. No.
162489, June 17, 2015, Bersamin.
37. Special mitigating circumstance - Accused was found
guilty of parricide punishable by the penalty of reclusion perpetua to
death. Applying rules for application of indivisible penalties (Article 63), the
lesser penalty of reclusion perpetua shall be applied if there are two
mitigating circumstance. The penalty cannot be lowered to reclusion
temporal, no matter how many mitigating circumstances are present. The
special mitigating circumstance is found in rules for application of divisible
penalties (Article 64), which is not applicable because the penalty is not
divisible (People vs. Takbobo, G.R. No. No. 102984, June 30, 1993). The
Takbobo principle is also applicable if the penalty prescribed by law for the
crime committed is a single indivisible penalty such as reclusion perpetua.
If there are three mitigating circumstance and one aggravating
circumstance, special mitigating circumstance for purpose of graduating
the penalty shall not be appreciated. Although there are two remaining
mitigating circumstances after applying the off-set rule, the penalty shall
not be lowered by one degree because the appreciation of special
mitigating circumstance requires that there is no aggravating
circumstance.
Page 10 of 25
 38. Off set rule - Only ordinary aggravating and mitigating
circumstances are subject to the offset rule. Privileged mitigating
circumstance of minority cannot be offset by ordinary aggravating
circumstance (Aballe vs. People, G.R. No. L-64086, March 15, 1990). If
privileged mitigating circumstance and ordinary aggravating circumstance
attended the commission of felony, the former shall be taken into account
in graduating penalty; the latter in applying the graduated penalty in its
maximum period (People vs. Lumandong, GR NO. 132745, March 9,
2000, En Banc). Quasi-recidivism is a special aggravating circumstance
and cannot be offset by a generic mitigating circumstance (People vs.
Macariola, G.R. No. L-40757 January 24, 1983). The circumstance of
treachery, which qualifies the killing into murder, cannot be offset by a
generic mitigating circumstance voluntary surrender (People vs. Abletes
and Pamero, GR NO. L-33304, July 31, 1974).
39. Penalty of offense under special law - The penalty for
possession of dangerous drugs is 12 years and 1 day to 20 years of
imprisonment. The court cannot impose a straight penalty of 12 years and
1 day since the application of indeterminate sentence law is mandatory
(unless the accused deserves a lenient penalty by confessing pursuant to
the Nang Kay principle). Applying the Islaw, the minimum indeterminate
penalty shall not be less than 12 years and 1 day while the maximum shall
not exceed 20 years. Thus, the court can sentence the accused to suffer
15 years of imprisonment as minimum to 18 years as maximum (Asiatico
vs. People, G.R. No. 195005, September 12, 2011; Escalante vs. People,
G.R. No. 192727, January 9, 2013).
Under Section 9 of RA 3019, the penalty for violation of Section
3 (e) of RA 3019 is imprisonment for not less than 6 years and 1 month
and not more than 15 years. Applying the Islaw, the minimum
indeterminate penalty shall not be less than 6 years and 1 month while the
maximum shall not exceed 15 years. Thus, the court can sentence the
accused to suffer 6 years and 1 month of imprisonment as minimum to 10
years as maximum (People vs. Reyes, G.R. No. 177105-06, August 12,
2010, Bersamin).
40. Mandatory application of the Islaw - The application of
the Indeterminate Sentence Law is mandatory to both the Revised Penal
Code and the special laws (Romero vs. People, G.R. No. 171644,
November 23, 2011). However, the Supreme Court, in People vs. Nang
Kay, G. R. No. L-3565, April 20, 1951, has provided an exception. In this
case, the accused pleaded guilty to offense where the law prescribed a
penalty of 5 to 10 years imprisonment. The court sentenced the accused
to suffer 5 years of imprisonment. The Supreme Court sustained the
penalty. Fixing the penalty at the minimum limit without applying Act No.
4103 is favorable to the accused since the accused shall be automatically
released upon serving 5 years of imprisonment. Applying Act No. 4103
would lengthen the penalty because the indeterminate maximum penalty
must be necessarily more than 5 years (People vs. Arroyo, G.R. No. L-
35584-85, February 13, 1982). However, the Nang Kay principle is not
applicable where the crime is punishable under the Revised Penal Code.
The application of ISLAW is always mandatory if the penalty is prescribed
by RPC since it is favorable to the accused. It is favorable to the accused
since in fixing the minimum penalty, the prescribed penalty under the
Code shall be lowered by one degree. On the other hand, in fixing the
minimum penalty for offense under special law involved in the Nang Kay
case, the prescribed penalty shall not be lowered (People vs. Judge Lee,
Jr, G.R. No. 66859, September 12, 1984). The Nang Kay principle is not
also applicable where the accused does not deserve a lenient penalty. In
Batistis vs. People, G.R. No. 181571, December 16, 2009, the SC through
Justice Bersamin said the Nang Kay exception is not applicable where
there is no justification for lenity towards the accused since he did not
voluntarily plead guilty, and the crime committed is a grave economic
offense because of the large number of fake Fundador confiscated.
41. Adoption of the technical nomenclature of the Spanish
penalty - RPC is not generally applicable to malum prohibitum. However,
when a special law, which punishes malum prohibitum, adopts the
technical nomenclature of the penalties in RPC, the provisions under this
Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994) such
as: (1) Article 68 on the privilege mitigating circumstance of minority; (2)
Article 64 on application of penalty in its minimum period if there is a
confession; and (3) Article 160 on special aggravating circumstance of
quasi-recidivism.
RA No. 7080 and RA No. 10591 adopt the nomenclature of the
penalties in RPC. Hence, minority, confession (Jacaban vs. People, GR
No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733,
September 21, 2007) or quasi-recidivisim shall be considered in plunder
and illegal possession of loose firearm.
Under Section 98 of RA No. 9165, the provisions of RPC shall
not apply except in the case of minor offenders. Hence, if the accused is a
minor, privilege mitigating circumstance of minority (People vs. Montalaba,
G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735,
October 24, 2012Asiatico vs. People, G.R. No. 195005, September 12,
2011), confession or quasi-recidivisim (People vs. Salazar, G.R. No.
98060, January 27, 1997) shall be considered in crime involving
dangerous drugs. In this case, life imprisonment shall be considered as
reclusion perpetua. If the accused is an adult, these circumstances shall
not be appreciated.
If the special law (such as RA No. 6235 on hijacking and RA
No. 3019 on corruption) did not adopt the technical nomenclature of
penalties in RPC, the latter shall not apply. Mitigating circumstance of
confession shall not be appreciated since the penalty not borrowed from
RPC cannot be applied in its minimum period. The crime has not
attempted or frustrated stage since penalty not borrowed from RPC
cannot be graduated one or two degrees lower.
Mitigating circumstance of old age can only be appreciated if
the accused is over 70 years old at the time of the commission of the
crime under RA No. 3019 and not at the time of promulgation of
judgement (People vs. Reyes, G.R. No. 177105-06, August 12, 2010,
Bersamin). Moreover, this the mitigating circumstance of old age cannot
be appreciated in crime punishable by RA No. 3019 since this law did not
adopt the technical nomenclature of the penalties of the Revised Penal
Code.
42. Subsidiary penalty - If the convict has no property with
which to meet the fine, 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 (Article 39 of RPC as amended by
RA No. 10159).
43. Multiple sentences - When the culprit has to serve two or
more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit. Thus, convict could serve simultaneously arresto
mayor and fine, prision correccional and perpetual absolute
disqualification, or reclusion perpetua and civil interdiction. In sum, while
lingering in prison, convict could pay fine, return the property confiscated,
be disallowed to cast his vote or to act function as a public officer.
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.
44. Three-fold rule - The three fold rule is to be taken into
account not in the imposition of the penalty but in connection with the
service of the sentence imposed (People vs. Escares, G.R. No. L-11128-
33, December 23, 1957; Mejorada vs. Sandiganbayan, G.R. No. L-51065-
72, June 30, 1987). Thus, the court cannot dismiss criminal cases in
excess of three on the basis of three-fold rule.
45. Modes of criminal extinction The modes of
extinguishing criminal liability are: death of the offender; service of the
sentence; amnesty or absolute pardon; prescription of crime, or penalty;
marriage between the offender and the offended in crimes against chastity
(Article 89 of RPC) or in rape; or forgiveness in marital rape (Article 266-
C); and probation (PD No. 968 as amended by RA No. 10707.
a. Reelection - Reelection to public office is not provided for in
Article 89 of RPC as a mode of extinguishing criminal liability incurred by a
public officer prior to his reelection (Oliveros vs. Villalulz, G.R. No. L-
34636, May 30, 1974). But a re-elected public official could not be
removed for administrative offense committed during a prior term, since
his re-election to office operates as a condonation of his misconduct to the
extent of cutting off the right to remove him therefor (Aguinaldo vs.
Santos, G.R. No. 94115 August 21, 1992). However, the doctrine of
condonation of administrative offense by reason of reelection has been
abandoned for being inconsistent to Section 1, Article X1 of the 1987
Page 11 of 25
Constitution on public office is a public trust and public accountability
(Morales vs. CA and Binay, GR No. 217126-27, November 10, 2015).
b. Novation - Novation is not a mode of extinguishing criminal
liability but it can extinguish the old contract, which may be the basis of
criminal liability. In estafa through misappropriation, receiving the
property in trust is an element thereof. In sum, contract is an ingredient of
this crime. Novation may convert the contract of trust into creditor-debtor
situation, or put doubt on the true nature of the original transaction
(People vs. Nery, G.R. No. L-19567, February 5, 1964). In these
situations, the accused will be acquitted for failure to prove the element of
receipt of property in trust. Thus, novation is a defense in estafa through
misappropriation where the contract of agency is converted into sale
(Degaos vs. People, GR No. 162826, October 14, 2013, Bersamin).
However, partial payment and promise to pay the balance of obligation
under contract of agency will not convert it into sale. There is no novation
since the obligation of the accused in making a partial payment is not
incompatible to the obligation to give the proceeds of sale of the property
under the contract of agency (Degaos vs. People, supra).
Novation cannot be used as a defense in case where the
existence of contract is not an element. 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).
c. Death - Death of an accused pending appeal shall
extinguish his criminal liability and civil liability arising from crime (Article
89 of RPC); but not his civil liability arising from a source other than crime
(e.g. quasi-delict, contract, quasi-contract or law). Civil liability arising from
a source other than crime is not deemed included in the institution of
criminal action. Hence, the private complainant must file a separate civil
action against either the executor or administrator, or the estate of the
accused. During the pendency of the criminal case, the statute of
limitations on this surviving civil liability is deemed interrupted (People vs.
Bayotas, G.R. No. 102007, September 2, 1994). However, in violation of
BP Blg. 22, civil liability arising from a source other than crimeis
mandatorily included in the institution of criminal action. Hence, the court,
despite the death of the accused pending appeal, must determine his civil
liability arising from contract (Bernardo vs. People, G.R. No. 182210,
October 05, 2015). In sum, the private complainant is not required to file a
separate civil action based on contract involving a dishonored check.
d. Pardon - Person, who was pardoned for the crime
punishable by reclusion perpetua, cannot run in the Senatorial race if the
terms of the pardon has not expressly restored his right to hold public
office (Article 36 of RPC) or expressly remitted the accessory penalty of
perpetual absolute disqualification (Article 41). GMA pardoned President
Estrada with express restoration of his civil and political rights. Hence, he
is eligible to run as Mayor (Risos-vidal vs. Lim, G.R. No. 206666, January
21, 2015).
e. Blameless ignorance doctrine - The State and private
complainant should not be blame for failure to institute the case
immediately after the commission of the crime if they are ignorant or has
no reasonable means of knowing the existence of a crime. Under
"blameless ignorance" doctrine (Section 2 of Act 3326 and Article 91 of
RPC), the prescription runs only upon discovery of the crime by offended
party or State through a person in authority or his agent. 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).
d. Discovery by a witness - Prescription runs only upon
discovery of the crime by offended party or person in authority or his
agent. For purpose of prescription of crime, the offended party includes
the person to whom the offender is civilly liable. Thus, the widow of the
murdered victim is an offended party (Garcia vs. CA, G.R. No. 119063,
January 27, 1997). Discovery of crime by a mere witness, who is not an
offended party, will not commence the running of prescription.
e. Constructive notice rule - The 10-year prescriptive period
for falsification of document shall commence to run on the date of
recording of the falsified deed of sale in the Registry of Deeds because of
the constructive notice rule under the Torren system (People vs. Reyes,
G.R. No. 74226, July 27, 1989). The 15-year prescriptive period for
bigamy shall commence to run on the date of actual discovery of the
bigamous marriage and not from the registration of bigamous marriage in
the Office of the Civil Registrar. The law on Civil Registry and the Family
Code, which governed registration of marriage, do not provide a rule on
constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454,
June 14, 1994).
f. Non-actionable crime - 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 period of prescription commences to run from the date
of the finality of judgment of a case in which the offender testified falsely.
Prior to the date of finality, the crime is not yet actionable (People vs.
Maneja, G.R. No. 47684, June 10, 1941). In violation of BP Blg. 22, the
crime is consummated upon the dishonor of the check by the drawee
bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001).
However, in violation of BP 22, the four-year 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 (People vs. Pangilinan, G.R. No.
152662, June 13, 2012). It would be absurd to consider the prescriptive
period for false testimony or violation of BP Blg. 22 as already running
before it becomes actionable, and yet, the complainant could not cause its
interruption because he is not yet allowed to file a complaint.
h. Filing of complaint for preliminary investigation - If the
crime is punishable by the Revised Penal Code or a special law, the
institution of judicial proceeding(e.g. filing of complaint or information in
court) or executive proceeding (e.g. filing of complaint for preliminary
investigation) interrupts the running of prescription such as the filing of
complaint: (1) for violation of BP Blg. 22 in the prosecutors office - People
vs. Pangilinan, G.R. No. 152662, June 13, 2012;Panaguiton vs.
Department of Justice, G.R. No. 167571, November 25, 2008; (2) for
violation of Revised Securities Act in Securities and Exchange
Commission - SEC vs. Interport Resources Corporation, G.R. No. 135808,
October 6, 2008; or (3) violation of RA No. 3019 in the Ombudsman -
Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
September 11, 2013.
The PCGG has no power to investigate cronies of Marcos for
violation of RA No. 3019 not involving ill-gotten wealth. Such investigation
for being voidab initiowould not interrupt the running of prescription
(People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29,
2009).
Ifthe crime is punishable by an ordinance, only the institution of
judicial proceeding shall interrupt itstwo-month prescriptive period. The
provision in the Rules on Criminal Procedure regarding the interruption of
prescription by institution criminal action is not applicable to violation of
ordinance because it is covered by the Rules on Summary Procedure.
Hence, the filing of complaint involving violation of ordinance for
preliminary investigation will not interrupt the running of the prescription
(Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, October
7, 2013).
47. Probation -Probation shall suspend the execution of
principal penalty of imprisonment, and accessory penalty of
disqualification (Villareal vs. People, G.R. No. 151258, December 01,
2014) but not the implementation of the civil aspect of the judgment
(Budlong, vs. Palisok, GR No. 60151, June 24, 1983).
When a judgment of conviction imposing a non-probationable
penalty is appealed or reviewed, and such judgment is modified through
the imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such decision
becomes final. This notwithstanding, the accused shall lose the benefit of
probation should he seek a review of the modified decision which already
imposes a probationable penalty (Section 4 of PD 968 as amended by RA
No. 10707). In Colinares vs. People, G.R. No. 182748, December 13,
2011, the accused, who was convicted by the lower court of a non-
probationable offense of frustrated homicide, but on appeal was found
guilty of a probationable offense of attempted homicide, may apply for
probation. In Villareal vs. People, G.R. No. 151258, December 1, 2014,
Page 12 of 25
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.
Under PD No. 968 as amended, crimes against public disorder
are non-probationable. However, under RA No. 10707, crimes against
public disorder such as alarm and scandal and direct assault are now
probationable.
The period of probation of a defendant sentenced to a term of
imprisonment of not more than one year shall not exceed two years, and
in all other cases, said period shall not exceed six years. When the
sentence imposes a fine only and the offender is made to serve subsidiary
imprisonment in case of insolvency, the period of probation shall not be
less than nor to be more than twice the total number of days of subsidiary
imprisonment (Section 14 of PD No. 968).
48. Direct assault Simple assault (such as punching) upon
an agent of a person in authority (e.g. police officer) while engaged in the
performance of duty constitutes simple resistance and not direct assault
because there is no intent to defy the law and its representative at all
hazard, which is an element thereof (U.S. vs. Tabiana, G.R. No. 11847,
February 1, 1918; U.S. vs. Agustin, G.R. No. 13083, December 11, 1917;
People vs. Lapitan, G.R. No. 38226, November 17, 1933). But serious
assault upon agent of a person in authority while engaged in the
performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No.
1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6,
1910).
Simple assault (such as punching) upon a person in authority
(e.g. mayor or chief of police) while engaged in the performance of duty
constitutes qualified direct assault. The law does not distinguish between
serious and simple laying of hands upon a person in authority as a
qualifying circumstance. Hence, a simple laying of hands upon a person in
authority constitutes qualified direct assault. The Tabiana principle is only
applicable if the victim is an agent of a person in authority (U.S. vs.
Gumban, G.R. No. 13658, November 9, 1918).
If the person in authority or his agent is engaged in the actual
performance of duties at the time of the assault, the motive for the assault
is immaterial. Direct assault is committed even if the motive (such as non-
payment of loan) was totally foreign to victims official function
(Sarcepuedes vs. People, G.R. No. L-3857, October 22, 1951).
The phrase "on occasion of such performance" used in Article
148 of RPC means "by reasonof the past performance of official duty
because the purpose of the law is to allow them to discharge their duties
without fear of being assaulted by reason thereof (People vs. Renegado,
G.R. No. L-27031, May 31, 1974). Attacking a judge on the street by
reason of past performance of duty (such as citing the accused in
contempt) constitutes qualified direct assault (U.S. vs. vs. Garcia, G.R.
No. 6820, October 16, 1911). But attacking a retired judge by reason of
past performance of duty is not direct assault since he is not anymore a
person in authority at the time of the assault. Note: The mandatory
retirement age of a judge is 70 year.
The status of lawyer as persons in authority remains even the
assault is committed outside the court room as long as it is perpetrated by
reason of the performance of their professional duties (Records of the
Batasan, Volume Four, 1984-1985 of BP Blg. 873, which amended Article
152 of RPC).
Attacking a third person who comes to the aid of a person in
authority, who is a victim of direct assault, is liable for direct assault upon
an agent of a person in authority. Attacking a third person who comes to
the aid of an agent of person in authority, who is a victim of direct assault,
is liable for indirect direct assault. Attacking a third person who comes to
the aid of an agent of person in authority, who is a victim of simple
resistance, is liable for physical injuries.
49. Evasion - In evasion of service of sentence, the accused
must be a convicted prisoner and not merely a detention prisoner. In
delivery of prisoner from jail, the person, who escaped through the help of
the accused, is either a detention prisoner or convicted prisoner. In
infidelity in the custody of prisoner, the person, who escaped in
connivance with or consent of or through negligence of the accused-
custodian, is either a detention prisoner or convicted prisoner. Evasion in
the service of sentence and delivery of prisoner from jail are committed by
means of dolo. Infidelity in the custody or prisoner is committed by means
of dolo or culpa; if this crime is committed by means of dolo, it is called
conniving with or consenting to evasion; if committed by means of culpa, it
is called evasion through negligence.
Brother of a detention prisoner and convicted prisoner bribed
the clerk of court to falsify release order and their custodians to release
his brothers. Convicted prisoner but not the detention prisoner is liable for
evasion of service of sentence. Brother and clerk of court are liable for
delivery of prisoner from jail with respect to the escape of detention
prisoner and convicted prisoner. Custodians are liable for infidelity in the
custody of prisoners with respect to the escape of detention prisoner and
convicted prisoner. Brother is liable for two counts of corruption of public
officer. Clerk of court and custodians are liable for direct bribery. Clerk of
court and brother are liable for falsification of document as principal by
direct participation and as principal by inducement, respectively.
50. Bribery - Plaintiff gave money to the judge, who in
consideration thereof subsequently rendered an unjust decision in favor of
the former. The judge is liable of direct bribery and rendering unjust
decision, while the plaintiff is liable of corruption of public officer. But if the
plaintiff gave money to the judge, who subsequently rendered a decision
against the former, the crime committed by the judge is indirect bribery
while the plaintiff is liable of corruption of public officer. The judge is not
liable of direct bribery since rendering a decision against the corruptor
indicates that the former did not receive the money in consideration of
rendering a decision in favor of the latter. It seems that the plaintiff merely
gave the money to the judge by reason of his position as such.
51. Abortion and infanticide If the fetus is killed inside the
womb of his mother, the crime is abortion regardless of whether he is
viable or not (People vs. Paycana, Jr. G.R. No. 179035, April 16, 2008;
People vs. Salufrania, G.R. No. L-50884, March 30, 1988). If the victim is
killed outside the womb of the mother, the crime is: (1) abortion if the
victim is not viable e.g. intrauterine life is only 6 months (People vs.
Detablan, 40 O.G. No. 9, p. 30; People vs. Paycana, Jr. G.R. No. 179035,
April 16, 2008); or (2) infanticide, if the victim is viable e.g. his intrauterine
life is more than 6 months and his life is less than 3 day old; or (3) murder
if the victim is viable and his life is 3 day old or more.
If the accused maltreated his wife and as a consequence, his
wife and unborn child died, the crime committed is compound crime of
parricide and unintentional abortion (People vs. Robinos, G.R. No.
138453, May 29, 2002; People vs. Villanueva, G.R. No. 95851, March 01,
1995). If the accused maltreated his pregnant wife and as a consequence,
his wife died, and his child was expelled, and died thereafter within 3
days, the crime committed is compound crime of parricide and infanticide.
If the accused maltreated his pregnant wife and as a consequence, his
wife died, and his child was expelled, and died thereafter on the third day,
the crime committed is compound crime of double parricides.
In abortion and infanticide, concealment of dishonor is a
special mitigating circumstance that can be appreciated in favor of the
mother and maternal grandparents but not in favor of the father or
fraternal grandparents.
52. Parricide - In parricide, if the victim is his parent or child,
the relationship can either be legitimate or illegitimate; if the victim is the
spouse, grandparent or grandchild, the relationship must be legitimate
(People vs. Gamez, GR No. 202847, October 23, 2013). Relationship in
parricide is by blood except where the victim is spouse (Regalado). The
qualifying circumstance of relationship in parricide is personal. Hence, it
can be appreciated against the wife but not against a co-conspirator, who
is not related to her husband, the victim (People vs. Bucsit G.R. No.
17865, March 15, 1922).
53. Death under exceptional circumstance -Death under
exceptional circumstance is a not crime but a defense (People vs.
Puedan, G.R. No. 139576, September 2, 2002), or an absolutory cause
(People vs. Talisic, G.R. No. 97961, September 05, 1997) since instead of
imposing the penalty for parricide, murder or homicide, the accused shall
only suffer destierro, which is just a measure designed to protect accused
from acts of reprisal principally by relatives of the victim (People vs.
Araquel, G.R. No. L-12629, December 9, 1959). Hence, death under
exceptional circumstance is not a felony within the contemplation of Article
4 (People vs. Abarca, G.R. No. 74433, September 14, 1987) and
aggression under exceptional circumstance is not an unlawful aggression
within the contemplation of self-defense (US vs. Merced, G.R. No. 14170,
November 23, 1918).
Page 13 of 25

Killing his wife after surprising her in the act of committing
homosexual intercourse with another woman is not death under
exceptional circumstance. Sexual intercourse mentioned in Article 247 is
different from homosexual intercourse. Killing his mistress after surprising
in the act of committing sexual intercourse with a man is not death under
exceptional circumstance(U.S. vs. Versola, G.R. No. 10759, January 25,
1916). The offender in Article 247 must be a legally married person.
Killing his wife under the circumstance indicating that she had just finished
having sexual intercourse with another man is not death under exceptional
circumstance. He did not catch his wife in the very act of sexual
intercourse, but after such act (People vs. Gonzales, G.R. No. 46310,
October 31, 1939).
54. Death in a tumultuous affray -The elements of death
caused in a tumultuous affray are as follows: (a) that there be several
persons; (b) that they did not compose groups organized for the common
purpose of assaulting and attacking each other reciprocally (Note: If there
is conspiracy, this element is not present; conspirators are liable for
homicide or murder; People vs. Corpuz, G.R. No. L-36234 February 10,
1981); (c) that these several persons quarrelled and assaulted one
another in a confused and tumultuous manner; (d) that someone was
killed in the course of the affray; (e) that it cannot be ascertained who
actually killed the deceased (Not: If the killers are identified, this element
is not present; since they are identified, they are liable for homicide or
murder; Wacoy vs. People, G.R. No. 213792, June 22, 2015); and (f) that
the person or persons who inflicted serious physical injuries or who used
violence can be identified.
55. Rape 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, Bersamin). 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). Failure to shout
should not be taken against the victim (People vs. Rivera, GR No.
200508, September 04, 2013; People vs. Rubio, G.R. No. 195239, March
7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It is not
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 (People vs. Torres, G.R. No. 134766, January 16, 2004).
a. Qualifying circumstance - If the relationship between the
accused and the victim of rape is uncle and niece, the Information must
alleged that the offender is a relative by consanguinity or affinity within
the third civil degree because there are niece-uncle relationships which
are beyond the third civil degree. However, a sister-brother relationship is
obviously in the second civil degree. Consequently, it is not necessary
that the Information should specifically state that the accused is a relative
by consanguinity within the third civil degree of the victim (People vs.
Ceredon, G.R. No. 167179, January 28, 2008).
Knowledge of the mental disability of the victim is not an
element of rape (People vs. Caoile, GR No. 203041, June 5, 2013) but it
is an ingredient of the qualifying circumstance of mental disability, which
must be alleged in the information (People vs. Obogne, GR No. 199740,
March 24, 2014; People vs. Lascano, G.R. No. 192180, March 21, 2012).
In qualifying circumstances of minority and relationship in rape
and special aggravating circumstance in sexual abuse under RA No.
7610, 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).
The Pruna guidelines in appreciating age, either as an element
of the crime or as a qualifying circumstance, are as follows.
1. The best evidence to prove the age of the offended party is
an original or certified true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which show
the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown
to have been lost or destroyed or otherwise unavailable, the testimony, if
clear and credible, of the victims mother or a member of the family either
by affinity or consanguinity who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of the offended party
pursuant to Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is less than 7 years
old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less than 12
years old;
c. If the victim is alleged to be below 12 years of
age and what is sought to be proved is that she is less than 18
years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or relatives concerning
the victims age, the complainants testimony will suffice provided that it is
expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age
of the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as
to the age of the victim (People vs. Lupac, G .R. No. 182230, September
19, 2012, Bersamin).
b. Absorption rule - 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 the doctrine of absorption is not
applicable to rape through sexual assault. Inserting lighted cigarette into
the genital orifice and anal orifice of the victim and raping her constitutes
two counts of rape by sexual assault and rape through sexual intercourse
(People vs. Crisostomo, GR No. 196435, January 29, 2014). Inserting the
penis into the mouth of the victim and into her genital orifice constitutes
rape through sexual assault and organ rape (In People vs. Espera, G.R.
No. 202868, October 02, 2013).
c. 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 a lesser crime,
which 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, which
is necessarily included in the charge of rape through sexual intercourse
(People vs. Pareja, GR No. 202122, January 15, 2014; People vs.
Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R. No.
183652, February 25, 2015).
d. Marital rape - Husband can be held liable for marital rape.
Article 266-A of RPC uses the term man in defining rape without regard
to the rapists legal relationship with his victim. Under Article 266-C of
RPC, 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. RA No. 8353 has 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 (People vs. Jumawan, G.R. No.
187495, April 21, 2014),
e. Public crime - 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).
f. Statutory rape - 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
Page 14 of 25
against a person "deprived of reason" (People vs. Dalan, G.R. No.
203086, June 11, 2014, Bersamin).
h. Criminal touching - Touching of either labia majora or labia
minora of the pudendum of the victim by an erect penis of the accused
capable of penetration consummates the crime (People vs. Campuhan,
G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932,
October 19, 2011, Bersamin). Touching the labia by instrument or object
(such as tongue or finger) also consummates the crime of rape through
sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011).
In People vs. Nuyok, G.R. No. 195424, June 15, 2015,
Bersamin, the commission of rape can be established by circumstantial
evidence even if the victim, being the sole witness, was rendered
unconscious during its commission. Accused slapped victim and punched
her in the stomach. She was rendered unconscious. When she regained
consciousness, she found blood in her panties, and felt pain in her vagina.
Accused was convicted of rape.
In People vs. Belgar, G.R. No. 182794, September 08, 2014,
Bersamin, the accused had injected an unknown substance into her belly
that had then rendered her unconscious. Upon waking up, she had found
herself lying naked on the ground; she had felt pain in her vagina, which
held a red and white substance in it; and he had been the only person last
seen by her before she had passed out. The lack of direct evidence
against him notwithstanding, these circumstances sufficed to prove his
guilt beyond reasonable doubt because they formed an unbroken chain
that unerringly showed Belgar, and no other, had committed the rape
against her.
If the offender touches the body of the victim through force,
without touching the labia of her pudendum but with clear intention to have
sexual intercourse, the crime committed is attempted rape. Intent to have
sexual intercourse is present if is shown that the erectile penis of the
accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441,
October 08, 2014, Bersamin) or the accused actually commenced to
force his penis into the victim's sexual organ (People vs. Banzuela, G.R.
No. 202060, December 11, 2013).
For there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of the
victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed (People vs.
Bandril, G.R. No. 212205, July 06, 2015).
If the offender touches the body of the victim through force,
with lewd design but without clear intention to have sexual intercourse, the
crime committed is acts of lasciviousness. Kissing and 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, G.R. No.
202060, December 11, 2013), touching the breast and thighs of victim and
kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); 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 because intent to have sexual intercourse is not clearly
shown, but lewd design is established.
In People vs. Dadulla, G. R. No. 172321, February 9, 2011,
Bersamin, the accused's act of opening the zipper and buttons of AAA's
shorts, touching her, and trying to pull her from under the bed manifested
lewd designs, not intent to lie with her. The evidence to prove that a
definite intent to lie with AAA motivated the accused was plainly wanting,
therefore, rendering him guilty only of acts of lasciviousness
In Cruz vs. People, G.R. No. 166441, October 08, 2014,
Bersamin, touching her genitalia with his hands and mashing her breasts
are "susceptible of double interpretation." These circumstances may show
that the intention of the accused is either to commit rape or simple
seduction (or acts of lasciviousness). Since intent to have sexual
intercourse is not clear, accused could not be held liable for attempted
rape. Hence, he is only liable for acts of lasciviousness.
If the offender touches the body of the victim without lewd
design or without clear intention to satisfy lust, the crime committed is
unjust vexation.
In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November
29, 1967, accused kissed and embraced his co-teacher while the latter
was conducting her class. The factual setting, i.e., a schoolroom in the
presence of complainant's students and within hearing distance of her co-
teachers, rules out a conclusion that the accused was actuated by a lustful
design. The crime committed is merely unjust vexation.
In People vs. Sumingwa, G.R. No. 183619, October 13, 2009,
embracing, dragging and kissing in front of her friend constitute unjust
vexation.
56. Perjury - Person cannot be held liable for perjury involving
a complaint affidavit for theft based on the execution of affidavit of
desistance. There is no perjury solely on the basis of two contradictory
statements. There must be further evidence that will show which of the
two sworn statements is false (U.S. vs. Capistrano 40 Phil. 902).
In a verified answer, accused denied the allegation in the
complaint for collection on his loan obligation. He is not liable for perjury
since verification is not required in answer in a civil case. He cannot be
prosecuted for perjury on the basis of an alleged falsehood made in a
verified pleading, which is not mandated by law to be verified (Saavedra,
Jr. vs. Department of Justice, G.R. No. 93178, September 15, 1993;
Flordelis vs. Himalaloan, G.R. No. L-48088, July 31, 1978).
The fact that subornation of perjury is not expressly penalized
in RPC does not mean that the direct induction of a person by another to
commit perjury has ceased to be a crime, because said crime is fully
within the scope of provision on principal by inducement (People vs.
Pudol, G.R. No. 45618, October 18, 1938).
Making untruthful statement (failure to disclose previous
criminal conviction) in a sworn application for the patrolman examination
constitutes perjury (People vs. Cruz, 108 Phil. 255). Making untruthful
statement (failure to disclose pending criminal case) in unsworn PDS
constitutes falsification of document (Sevilla vs. People, G.R. No. 194390,
August 13, 2014). If there are several mistakes the PDS including those
which are not important, accused cannot be convicted of falsification of
document since it appears that failure to disclose pending criminal case is
not deliberate. Hence, accused is only liable for reckless imprudence
resulting in falsification (Sevilla vs. People, supra).
Making it appears that a person participated in an act or
proceeding where in fact he did not is not the actus reus in perjury. Hence,
a mayor, who made it appear that affiants swore and signed the affidavit
before him where in fact they did not, is liable of falsification of document
and not perjury (Lonzanida vs. People, G.R. Nos. 160243-52, July 20,
2009).
57. Falsification - Falsification of a public document is
consummated upon the execution of the false document. What is
punished in falsification of public document is principally the undermining
of the public faith and the destruction of truth as solemnly proclaimed
therein. The fact that accused did not benefit from, or that the public was
not prejudiced by the falsified resolution is not a defense (Goma vs. CA,
G.R. No. 168437, January 08, 2009).
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, Tanenggee vs. People,
G.R. 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.
In De Castro vs. People, G.R. No. 171672, February 02, 2015,
Bersamin, as a bank teller, she took advantage of the bank depositors
who had trusted in her enough to leave their passbooks with her upon her
instruction. Without their knowledge, however, she filled out withdrawal
slips that she signed, and misrepresented to her fellow bank employees
that the signatures had been verified in due course. Her misrepresentation
to her co-employees enabled her to receive the amounts stated in the
withdrawal slips. She thereby committed two crimes, namely: estafa, by
defrauding the bank, her employer, in the various sums withdrawn from
the bank accounts of depositors; and falsification of a commercial
document, by forging the signatures of depositor in the withdrawal slips to
make it appear that the depositor concerned had signed the respective
slips in order to enable her to withdraw the amounts. Such offenses were
complex crimes, because the estafa would not have been consummated
without the falsification of the withdrawal slips.
Page 15 of 25

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.
Distinction should be made as to when the crimes of Estafa
and Falsification will constitute as one complex crime and when they are
considered as two separate offenses. The complex crime of estafa
through falsification of documents is committed when one has to falsify
certain documents to be able to obtain money or goods from another
person. In other words, the falsification is a necessary means of
committing estafa. If the falsification is committed to conceal the
misappropriation, two separate offenses of estafa and falsification are
committed. In the instant case, when accused collected payments from
the customers, said collection which was in her possession was at her
disposal. The falsified or erroneous entries which she made on the
duplicate copies of the receipts were contrived to conceal some amount of
her collection which she did not remit to the company. Hence, the accused
is liable for separate crimes of estafa and falsification of document (Patula
vs. People, G.R. No. 164457, April 11, 2012, Bersamin).
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,
Bersamin) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140)
with less risk of being detected, the accused is liable for complex crime
proper.
In Zafra vs. People, G.R. No. 176317, July 23, 2014,
Bersamin, there is a big disparity between the amount covered by
receipts issued to the taxpayer, and the amount for the same receipts in
the tax collection reports indicating the falsification resorted to by the
accused in the official reports he filed, thereby remitting less than what
was collected from taxpayers concerned, resulting to the loss of revenue
for the government as unearthed by the auditors. Thus, the accused is
liable for complex crime of malversation through falsification of
documents.
If the falsification of a private document (demand letter, letter of
guarantee) is committed as a means to commit estafa, the crime
committed is falsification only. Under the common element doctrine, the
use of damage as an element in falsification of private document
precludes the re-use thereof to complete the elements of estafa. Hence,
estafa is not committed because the element of damage is not
present(Batulanon vs. People, G.R. No. 139857, September 15, 2006);
U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes,
G.R. No. L-34516, November 10, 1931). There is no complex crime of
estafa through falsification of private document.
If a person commits falsification of private document to conceal
malversation or estafa, the crime is estafa only. Under the common
element doctrine, the use of damage as an element in estafa precludes
the re-use thereof to complete the elements of falsification. Hence, estafa
is not committed because the element of damage is not present (See:
People vs. Beng, 40 O.G. 1913).
58. Malversation - For purpose of malversation, national
officer shall be considered as an accountable officer if he has custody or
control of public property by reason of the duties of his office (Government
Auditing Code of the Philippines. The Local Government Code expanded
the concept of accountable local officer. Local officer shall be considered
as an accountable officer if he has possession or custody of local
government funds because of the nature of their functions such a treasure
or has participated in the use or application of thereof (Zoleta vs.
Sandiganbayan, G.R. No. 185224, July 29, 2015) such as a mayor, whose
signature is needed to disburse municipal funds (Manuel vs. Hon.
Sandiganbayan, G.R. No. 158413, February 08, 2012).
Malversation is committed either intentionally or by negligence.
The dolo or the culpa is only a modality in the perpetration of the felony.
Even if the mode charged differs from the mode proved, the same offense
of malversation is still committed (Mesina vs. People, G.R. No. 162489,
June 17, 2015, Bersamin).
59. Estafa In offenses against property (theft or estafa), if the
subject matter of the offense is generic and not identifiable (e.g.
money), an error in the designation of the offended party is fatal. However,
if the subject matter of the offense is specific and identifiable (e.g. check
or jewelry), an error in the designation of the offended party is immaterial
(Senador vs. People, G.R. No. 201620, March 06, 2013). In oral
defamation, a crime against honor, 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 (People vs. Uba,
106 Phil. 332).
Demand is not an element of estafa through misappropriation.
Demand is only important if there is no direct evidence of misappropriation
because failure to account for the property in trust upon demand is
circumstantial evidence of misappropriation. In this connection, verbally
inquired about the money entrusted to the accused is tantamount to a
demand (Asejo vs. People, G.R. No. 157433, July 24, 2007). On the other
hand, demand is not necessary where there is direct evidence of
misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015).
This rule on demand is applicable to malversation (Munib vs. People, G.R.
Nos. 163957-58, April 07, 2009).
Where the borrower is importers acquiring goods for resale,
goods sold in retail are often within his custody until they are purchased.
This is covered by trust receipt agreement. Failure to return the unsold
good or deliver the proceeds of sale to the bank is estafa in relation to PD
No. 115 (Trust Receipt Law). Where the borrower is engaged in
construction, the materials are often placed under custody of his clients,
who can only be compelled to return the materials if they fail to pay. Since
the bank and the contractor know that the return of the materials is not
possible, this is not covered by trust receipt agreement. This transaction
becomes a mere loan, where the borrower is obligated to pay the bank the
amount spent for the purchase of the goods. The accused is not liable for
estafa because of the constitutional provision of non-imprisonment for
nonpayment of debts (Yang vs. People, G.R. No. 195117, August 14,
2013).
In other forms of swindling under Article 316, (1) and (2) of
RPC, offender made false representation involving real property and act of
ownership such as selling it, which causes damage to third person. In
paragraph 1, the accused represents that he owned the property, while in
paragraph 2, he expressly represents in the deed of conveyance that the
property is free from encumbrance (Estrellado-Mainar vs. People, G.R.
No. 184320, July 29, 2015) or "como libre". These words "como libre" in
the Spanish Penal Code are deemed incorporated in the RPC (Naya vs.
Abing, G.R. No. 146770, February 27, 2003).
60. Theft - To "take" under theft the Revised Penal Code does
not require asportation or carrying away (Medina vs. People, G.R. No.
182648, June 17, 2015). It is not an indispensable requisite of theft that a
pickpocket should carry, more or less far away, a wallet taken from its
owner (People vs. Mercado, G.R. Nos. L-45471 and L-45472, June 15,
1938).
The term "personal property" in RPC 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). Since asportation is not an element of theft, a
personal property can to be the object of theft as along as it is capable of
appropriation although it is not capable of "asportation" (Medina vs.
People, G.R. No. 182648, June 17, 2015). Intangible property is not
capable of asportation, and yet, it can be an object of theft since is
capable of asportation.
If the property is tangible, taking is deemed complete from the
moment the offender gains possession over the thing, even if he has no
opportunity to dispose of the same (People vs. Bustinera, G. R. No.
148233, June 8, 2004). If the property is intangible, taking includes
controlling the destination of this property stolen to deprive the owner of
the property (e.g. the use of a meter tampering, use of a device to
fraudulently obtain gas, and the use of a jumper to divert electricity). Using
device to control the destination of international telephone call under the
telecommunication system of PLDT without its consent to earn by
charging user of the phone at the expense of PLDT is taking the property
of PLDT of providing telecommunication service (Laurel vs. Abrogar,
supra).
Page 16 of 25

a. No frustrated theft - If the bulky goods are taken by the
accused inside a compound (such as SM), theft is consummated even if
the accused failed to bring out the stolen goods from the compound,
which makes him unable to freely dispose it. Inability to dispose the stolen
property is not an element of theft. Unlawful taking is the element which
produces the felony in its consummated stage. Without unlawful taking,
the offense could only be attempted theft, if at all. Thus, theft cannot have
a frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21,
2007). If the accused is charged with frustrated theft, he could not be
convicted of the crime charged because theft has no frustrated stage.
Neither could he be convicted of consummated theft since it was not
alleged in the information. But he could be convicted of attempted theft
because this is a lesser crime, which is necessarily included in the charge
of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015).
b. Theft through misappropriation - Misappropriation of
personal property received by the accused with consent of the owner is
theft or carnapping or cattle rustling if his possession is physical or de
facto, or estafa through misappropriation if it is legal or de jure.
If the accused received the car from the owner for repair the
possession is physical, and thus, misappropriation thereof is carnapping
(Santos vs. People, G.R. No. 77429 January 29, 1990).If the accused
received the property to bring it to a goldsmith for examination and to
immediately return it back to the owner, his possession is physical, and
thus, misappropriation thereof is theft (U.S. v. De Vera, G.R. No. L-
16961, September 19, 1921). If the accused received the property with
authority to sell it (Guzman vs. CA, 99 Phil. 703), or money with authority
to use it to buy palays (Carganillo vs. People, G.R. No. 182424,
September 22, 2014), or with full freedom and discretion on how to use it
to facilitate its remittance to BIR as payment of tax and reduce the amount
due (Velayo vs. People, G.R. No. 204025, November 26, 2014), his
possession is juridical. Thus, failure of the agent to return it is estafa
(Guzman v. Court of Appeals, 99 Phil. 703; Tria vs. People, G.R. No.
204755, September 17, 2014).
A franchise holder must personally operate the motor vehicle.
That is the reason why government regulation prohibits operator of motor
vehicle from leasing it. In the eye of the law the driver of taxi or passenger
jeepneyunder boundary arrangement was only an employee of the owner
rather than a lessee. For being an employee, his possession of the
jeepney is physical (People v. Isaac G.R. No. L-7561, April 30, 1955), and
thus, misappropriation thereof is carnapping (People vs. Bustinera, G. R.
No. 148233, June 8, 2004)
As a rule, the possession of the employee such as bank teller,
collector or cash custodian is only physical possession. Hence,
misappropriation of property is qualified theft. Abuse of confidence is
present since the property is accessible to the employee (People v.
Locson, G.R. No. L-35681, October 18, 1932; Matrido vs. People, G.R.
No. 179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466,
February 25, 2015; Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000;
Balerta vs. People, G.R. No. 205144, November 26, 2014). However, if
the employee is an officer of the companywith discretion on how to use
property or fund of the company,his possession is juridical; hence,
misappropriation thereof is estafa. Thus, the following officers are liable
for estafa through misappropriation (1) a corporate officer with discretion
option on how to use bending machine without the participation of the
corporation(Aigle vs. People, G.R. No. 174181, June 27, 2012); (2) bank
President with discretion on how to administer fund (People vs. Go, G.R. No.
191015, August 6, 2014), and (3) Liaison Officer of a pawnshop with
discretion on how to secure or renew licenses and permits (Gamboa vs.
People, G.R. No. 188052, April 21, 2014).
In robbery with intimidation of persons, the intimidation
consists in creating fear in the mind of a person 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. Threat of prosecution and confiscation of the
logs by DENR officers is an intimidation within the meaning of robbery
(Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009).
c. Lost property - Any person who, having found lost property,
shall fail to deliver the same to the local authorities or to its owner, is liable
for theft. If the finder surrenders the property found to a policeman, who
fails to deliver it the owner, the policeman is liable for theft. He acquired
the position occupied by the actual finder. Appropriating the property is of
the same character of that made by one who originally found the same
(People vs. Avila, G.R. No. L-19786, March 31, 1923).
d. Qualified theft - If the property is not accessible to the
employee, taking it is simple theft (Viray vs. People, G.R. No. 205180,
November 11, 2013). On the other hand, if the property is accessible to
the employee, taking it is qualified theft because of the circumstance of
abuse of confidence (Yongco vs. People,G.R. No. 209373, July 30, 2014).
61. Arson Destructive arson is characterized as heinous
crime; while simple arson under PD No. 1613 is a crime manifesting a
lesser degree of perversity. Simple arson contemplates the malicious
burning of property not included in Article 320 of the RPC (People vs.
Macabando, GR No. 188708, July 31, 2013). Burning of inhabited house
or dwelling or personal property is simple arson under Section 3 of P.D.
No. 1613 because it is not included in Article 320 of RPC.
If the main objective is to kill the victim in a building, and fire is
resorted to as the means to accomplish such goal, the crime committed
is murder only. Murder qualified by means of fire absorbs arson since the
latter is an inherent means to commit the former (People vs. Cedenio,
G.R. No. 93485, June 27, 1994). Single act of burning the building to kill
two persons constitutes compound crime of double murders (People vs.
Gaffud, G.R. No. 168050, September 19, 2008).
One has deliberately set fire to a building is presumed to have
intended to burn the building (People vs. De Leon, G. R. No. 180762,
March 4, 2009). Since intent to burn is presumed, intent to kill must be
established beyond reasonable doubt. Failure to show intent to kill, the
accused shall be convicted of arson with homicide and not murder
(People vs. Baluntong, G.R. No. 182061, March 15, 2010).
If the main objective is to burn the building, but death results by
reason or on the occasion of arson, the crime is arson with homicide, and
the resulting homicide is absorbed (People vs. Villacorta, 172468, October
15, 2008).
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 (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
62. Bigamy After the consummation of the crime of bigamy,
declaration of nullity of first marriage and/or second marriage is not a
defense on the following grounds:
First ground - After the consummation of bigamy, subsequent
declaration of nullity of the first and/or the second marriage is not a
defense since it is not a mode of extinguishing criminal liability listed in
Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009).
Bigamy is consummated upon contracting second marriage
despite the subsistence of the first marriage consummates. Once the
crime consummates, criminal liability will attach to the accused and will
not be extinguished except through a mode mentioned in Article 89 of
RPC as death, pardon etc. After the consummation of bigamy or
celebration of the second marriage, the criminal liability shall not be
extinguished by subsequent events such as declaration of nullity of
marriage not mentioned in Article 89 of RPC.
Second ground - To make declaration of nullity of first marriage
and/or second marriage after the consummation of the crime of bigamy as
a defense would render the States penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape liability for bigamy
(Tenebro vs. The Honorable Court of Appeals, G.R. No. 150758, February
18, 2004; Walter vs. People, GR No. 183805, July 03, 2013).
Third ground - To avoid criminal liability, the declaration of
nullity of the first marriage must be made previous to the consummation of
bigamy, which is required by Article 40 of the Family Code that
provides: The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void. A declaration of the absolute nullity of the
first marriage is now explicitly required either as a cause of action or a
ground for defense in bigamy (People vs. Teves, G.R. No. 188775,
August 24, 2011). Even though the first marriage was contracted prior to
the Family Code, the rule is the same since Article 40, which is a rule of
procedure, should be applied retroactively. The reason is that as a general
Page 17 of 25
rule, no vested right may attach to, nor arise from, procedural laws (Jarillo
vs. People, G.R. No. 164435, June 29, 2010).
Article 40 of the Family Code is only applicable if what is
involved is declaration of nullity of the first marriage. Hence, if what is
involved is post-bigamy declaration of nullity of the first marriage, this is
not a defense because of the first, second and third grounds. If what is
involved is post-bigamy declaration of nullity of the second marriage, this
is not a defense because of the first and second grounds.
Post-bigamy declaration of nullity of the first or second
marriage is not a defense whether the ground for nullity is psychological
incapacity (Mercado vs. Tan, G.R. No. 137110, August 1, 2000) or lack of
license and affidavit of cohabitation (Lasanas vs. People, G.R. No.
159031, June 23, 2014, Bersamin) or even though the declaration is
obtained before the filing of the complaint for bigamy (People vs. Odtuhan,
GR No. 191566, July 17, 2013).
Exceptions:
1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51
O.G. 4079, the second marriage was celebrated one day before the
issuance of the marriage license. In this situation, the accused can use
the voidness of the second marriage as a defense in bigamy. The
accused did not cause the falsification of public documents in order to
contract a second marriage. He did not fraudulently secure a Certificate of
Marriage, and later used this criminal act as basis for seeking her
exculpation. The crime committed is not bigamy under Article 349
(Santiago vs. People, G.R. No. 200233, July 15, 2015) but marriage
contracted against the provisions of the law under Article 350 (People vs.
Peralta, CA-GR No. 13130-R, June 30, 1955).
The De Lara principle is only applicable if the two requisites are
applicable: (1) the accused did not did not cause the falsification of public
documents in order to contract a second marriage. As a rule, the accused
cannot use the voidness of the second marriage as a defense in bigamy
because she fraudulently secured a certificate of marriage, and that is
presenting a falsified affidavit of cohabitation instead of marriage license
(Santiago vs. People, G.R. No. 200233, July 15, 2015); and (2) the
second marriage is null and void for lack of marriage license; if the first
marriage is declared null and void due to lack of marriage license or
affidavit of cohabitation, this is not a defense because Article 40 of the
Family Code required declaration of nullity before the celebration of
second marriage (Lasanas vs. People, G.R. No. 159031, June 23, 2014,
Bersamin).
2. 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. Hence, bigamy is not committed (Morigo vs. People,
G.R. No. 145226, February 06, 2004).
3. X contracted three marriages. His first wife is already dead
when X contracted his third marriage.
X is liable for bigamy involving the second marriage on the
basis of his first marriage because the first was existing when the
contracted the second.
X is not liable for bigamy involving the third marriage on the
basis of the first marriage since the first has already been extinguished by
reason of death of the first wife when he contracted the third.
X is not liable for bigamy involving the third marriage on the
basis of the second marriage since the second is null and void for being a
bigamous marriage.
Other view: X is liable for bigamy involving the third marriage
on the basis of the second marriage. Although the second is null and void
for being a bigamous marriage, X should have first caused the declaration
of nullity of the second marriage for being bigamous before contracting a
third marriage.
63. Illegal marriage A priest, who performed a marriage
ceremony despite knowledge that the couple had no marriage license, is
liable for illegal marriage. 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 (Ronulo vs.
People, G.R. No. 182438, July 02, 2014).
64. Libel - Under Article 360 of the RPC, the publisher, and
editor of newspaper, shall be responsible for the defamations contained
therein to the same extent as if he were the author thereof. The publisher
and editors cannot disclaim liability for libelous articles that appear on their
paper by simply saying they had no participation in the preparation of the
same. They cannot say that Tulfo was all alone in the publication
of Remate, on which the defamatory articles appeared. It is not a matter of
whether or not they conspired in preparing and publishing the subject
articles, because the law simply so states that they are liable as if they
were the author (Tulfo vs. People, G.R. No. 161032, September 16,
2008).
Comment is not fair if there is reckless disregard of knowing
whether the defamatory imputation is false or not. Hence, the accused
cannot use the fair comment principle as a defense. In Erwin Tulfo vs.
People, G.R. No. 161032, September 16, 2008 - 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 describing a lawyer in the Bureau of Customs as corrupt 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.
65. Incriminating an innocent person - 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 or ammunition, 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 for
loose firearm.
If unlawful arrest is committed to plant incriminatory evidence,
the crime committed is complex crime of incriminating innocent person
through unlawful arrest (People vs. Alagao, G.R. No. L-20721, April 30,
1966). If incriminatory evidence is planted to justify an unlawful arrest, the
crime committed is complex crime of unlawful arrest through incriminating
an innocent person. But if the incriminatory evidence is dangerous drugs,
explosive or loose firearm, unlawful arrest and planting of evidence are
separate crimes. Complex crime is not committed since planting of
evidence, which is punishable under special law, cannot be made a
component of a complex crime.
Stealing property and planting the stolen property to impute to
the victim the crime of theft constitutes complex crime of incriminating an
innocent person through theft.
Planting of live bullet by NAIA personnel to extort money from
a passenger of an airline constitutes separate crime of planting of
evidence and consummated or attempted robbery.
66. Imprudence or negligence To make a doctor liable for
reckless imprudence resulting to homicide, it must be shown that he did
not treat his patient in accordance with the standard of care and skill
commonly possessed and exercised by similar specialists under similar
circumstances. Failure to present specialist as witness to testify on this
standard is fatal to the prosecution of the case (Solidum vs. People, GR
No. 192123, March 10, 2014, Bersamin).
There are two views on whether culpa is a crime or just a mode
of committing a crime.
First view: Culpa under Article 3 of the Revised Penal Code is
not a crime but just a mode of committing a crime. Applying this rule, there
are three crimes committed, to wit: (1) reckless imprudence resulting in
homicide, (2) reckless imprudence resulting in damage to property and (3)
reckless imprudence resulting in slight physical injuries. However, single
reckless act resulting in homicide and damage to property is a complex
crime (Angeles vs. Jose, G.R. No. L-6494, November. 24, 1954). But the
slight physical injuries that resulted from the same recklessness shall be
treated as a separate crime. Since this is a light felony, it cannot be made
Page 18 of 25
a component of a complex crime (Lontoc, Jr. vs. Gorgonio, L37396, April
30, 1979; People vs. Turla, G.R. No. L-26388, February 14, 1927;
Gonzaga vs. People, G.R. No. 195671, Jan. 21, 2015; 1983, 2011, and
2012 Bar Exams).
Under this view, the motion to quash shall be denied because
reckless imprudence resulting in slight physical injuries and the complex
crime of reckless imprudence resulting in homicide and damage to
property are separate crimes, and hence, the conviction of the first is not a
bar to the continued prosecution of the second.
Second view: 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. Thus the law penalizes 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; Quizon vs. Hon. Justice of Peace, July 28,
1955, GR N L-6641; People vs. Buan, L-25366, March 29, 1968; 1952,
1959, 1961 and 2013 Bar Exams).
Under this view, the motion to quash shall be granted because
reckless imprudence resulting in homicide, damage to property and slight
physical injuries constitute a single crime, and hence, the conviction of
culpable felony involving slight physical injuries is a bar to the continued
prosecution of the same culpable felony involving homicide and damage
to property.
67. BP 22 Settled is the rule that estafa will not lie when the
parties waive the negotiable character of a check, and instead treat the
same as proof of an obligation. For instance, when there is an agreement
between the parties at the time of the issuance and postdating of the
checks that the obligee shall not encash or present the same to the bank,
the obligor cannot be prosecuted for estafa because the element of deceit
is lacking (People vs. Villanueva, G.R. No. 163662, February 25, 2015,
Bersamin). In BP Blg. 22, the fact that the check is not intended to be
encashed or deposited in a bank is not a defense. This check produces
the same effect as ordinary check. What the law punishes is the issuance
of a rubber check itself and not the purpose for which the check was
issued nor the terms and conditions relating to its issuance (Cueme vs.
People, G.R. No. 133325, June 30, 2000).
a. Knowledge of the payee - When the payee was informed
that the checks are not covered by adequate funds, bad faith
or estafa shall not arise People vs. Villanueva, G.R. No. 163662, February
25, 2015, Bersamin). In BP Blg. 22, the facts that the payee had
knowledge that he had insufficient funds at the time he issued the check is
immaterial as deceit is not an essential element of the offense under this
law. The gravamen of the offense under BP Blg. 22 is the issuance of a
bad check; hence, malice and intent in the issuance thereof are
inconsequential (Rigor vs. People, G.R. No. 144887, November 17, 2004).
b. No account with the bank - According to the accused, she
did not own the check that she issued to complainant as collateral. He
merely borrowed it from a friend. What BP 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. The law penalizes a person who indulges in the
making and issuing of unfunded check on an account belonging to
another with the latters consent. Also, that the check was not intended to
be deposited was really of no consequence to her incurring criminal
liability under BP 22 (Resterio vs. People, G.R. No. 177438, September
24, 2012, Bersamin).
c. Pre-existing obligation - In order to
constitute estafa through issuance of bouncing check, the postdating or
issuing a check must be the efficient cause of the defraudation. In sum,
the offender must be able to obtain property from the offended party by
reason of the issuance of the check (People vs. Reyes, GR No. 157943,
September 4, 2013). Thus, In estafa, the fact that check was issued in
payment of pre-existing obligation is a valid defense (People vs. Reyes,
G.R. No. 154159, March 31, 2005). But in BP Blg. 22, it is not a valid
defense (Ngo vs. People, G.R. No. 155815, July 14, 2004). In BP Blg. 22,
the check involved must be issued to apply on account or for value.
Deliberations in the Batasan Pambansa indicate that account refers to
pre-existing obligations; while for value means an obligation incurred
simultaneously with the issuance of the check.
e. Notice of dishonor To be guilty of this crime the accused
must have used the check in order to defraud the complainant. However,
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 (People vs. Reyes,
supra). But receipt of notice of dishonor is not an element of estafa
through issuance of bouncing check.
The giving of the written notice of dishonor does not only
supply the proof for the second element of violation of BP Blg. 22 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, Bersamin).
Demand letter was given with the security guard without proof
that it reached accused and through registered mail which was returned
with the notation "N/S Party Out 12/12/05". Since there is proof that
accused received the notice of dishonor, he was acquitted. However he is
still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).
The mere presentment of the two registry return receipts was
not sufficient to establish the fact that written notices of dishonor had been
sent to or served on the petitioner as the issuer of the check. Considering
that the sending of the written notices of dishonor had been done by
registered mail, the registry return receipts by themselves were not proof
of the service on the accused without being accompanied by the
authenticating affidavit of the person who had actually mailed the written
notices of dishonor, or without the testimony in court of the mailer on the
fact of mailing (Resterio vs. People, G.R. No. 177438, September 24,
2012, Bersamin).
For notice by mail, it must appear that the same was served on
the addressee or a duly authorized agent of the addressee. In fact, the
registry return receipt itself provides that [a] registered article must not be
delivered to anyone but the addressee, or upon the addressees written
order, in which case the authorized agent must write the addressees
name on the proper space and then affix legibly his own signature below
it. In the case at bar, no effort was made to show that the demand letter
was received by petitioners or their agent. All that we have on record is
an illegible signature on the registry receipt as evidence that someone
received the letter. As to whether this signature is that of one of the
petitioners or of their authorized agent remains a mystery (Resterio vs.
People, G.R. No. 177438, September 24, 2012, Bersamin).
The wife of complainant verbally informed the accused that the
check had bounced did not satisfy the requirement of showing that written
notices of dishonor had been made to and received by the petitioner. The
verbal notices of dishonor were not effective because it is already settled
that a notice of dishonor must be in writing (Resterio vs. People, G.R. No.
177438. September 24, 2012, Bersamin).
Under the Negotiable Instruments Law, notice of dishonor is
not required where the drawer has no right to expect that the bank will
honor the check. Since bank account of accused was already closed even
before the issuance of the subject check, he had no right to expect the
drawee bank to honor his check. Hence, he is not entitled to be given a
notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26, 2008,
).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.
f. Payment - Payment of check before the filing of information
is a defense. The spirit of B.P. Big 22, which is to protect the stability of
the banking system, would not be served by penalizing people who have
corrected their mistakes and restituted damages even before charges
have been filed against them. In sum, by making payment of the check
before the filing of the information, the purpose of the law has already
been attained. Payment of check after the filing of informationis not a
Page 19 of 25
defense. Since there is no showing of intention to mitigate the bad effects
of his issuance of the unfunded check, then there is no equitable reason
to preclude the prosecution of accused. In such a case, the letter of the
law should be applied to its full extent (Lim vs. People, G.R. No. 190834,
November 26, 2014).
The essence of estafa through issuance of bouncing check is
to punish fraud and not to protect the integrity of the check. Damage and
deceit are elements of estafa, 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 (Lim vs. People, supra).
g. Suspension of payment - Suspension of payment order
issued by SEC before the check was presented for payment is a defense
in BP Blg. 22. Considering that there was a lawful Order from the SEC,
the contract is deemed suspended. Thus, the accused has no obligation
to fund the check and the complainant has no right to present it for
payment (Gidwani vs. People, GR No. 195064, January 15, 2014).
Suspension of payment order issued by SEC after three months from
receipt of notice of dishonor is not a defense in BP Blg. 22. The accused
has the obligation to make good of the check after he received the letter
prior to the issuance of suspension order (Rosario vs. Co, G.R. No.
133608, August 26, 2008).
68. RA No. 7610 - The Family Code prohibits the infliction
of corporal punishment by teacher. A schoolteacher in employing
unnecessary violence on her minor student, who even fainted, is liable for
child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988,
October 08, 2014, Bersamin). 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
(Bongalon vs. People, G.R. No. 169533, March 20, 2013, Bersamin).
a. Sexual abuse - Having sexual intercourse or lascivious
conduct with a child constitutes child prostitution if committed for money,
profit, or any other consideration (People vs. Jalosjos, G.R. Nos. 132875-
76, November 16, 2001); or sexual abuse is committed under coercion or
influence of any adult, syndicate or group. In child prostitution, the victim is
called child exploited in prostitution while in sexual abuse the victim is
called child subjected to other abuse (Section 5 of RA No 7610). Coercion
is either physical or psychological. Taking advantage of ascendency as a
swimming instructor over student is psychological coercion (People vs.
Larin, G.R. No. 128777, October, 7 1998). The assurance of love,
guarantee that she would not get pregnant by using the "withdrawal
method" and the promise of marriage were classified as "psychological
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).
If the child is 12 years old and above, and the acts of the
accused constitute sexual abuse under RA No. 7610 and rape through
sexual assault or acts of lasciviousness, he shall be prosecuted under RA
No. 7610 since this law prescribed a grave penalty (Dimakuta vs. People,
G.R. No. 206513, October 20, 2015). However, if the acts constitute
sexual abuse and rape through sexual intercourse, he shall be prosecuted
under RPC since this law prescribed a graver penalty. He cannot be
prosecuted for compound crime of rape and sexual abuse because the
latter is punishable under special law. He cannot be prosecuted for both
rape and sexual abuse because of the rule on double jeopardy (People v.
Matias, G.R. No. 186469, June 13, 2012 and Alberto vs. Hon. Court of
Appeals, G.R. No. 182130, June 19, 2013).
If the child is under 12 years old, and the acts of the accused
constitute sexual abuse and rape or acts of lasciviousness, the latter shall
be prosecuted penalized as follows: (1) rape through sexual intercourse;
(2) acts of lasciviousness with the penalty of reclusion temporal in its
medium period (Section 5 of RA No. 7610).Prior to RA No. 8353 (Rape
Law), inserting finger into genital orifice is acts of lasciviousness. Hence,
reclusion temporal in its medium period under RA No. 7610 should be
imposed. Under RA No. 8353, inserting finger into genital orifice is rape
through sexual assault where the penalty is prision mayor. To impose the
lighter penalty under RPC as amended by RA 8353 is unfair to the victim.
It is not the intention of RA No. 8353 to disallow the imposition of penalty
under RA No. 7610 if the victim is child subjected to sexual abuse, who
isunder 12 years of age (People vs. Chingh, G.R. No. 178323, March 16,
2011). If the crime is qualified rape through sexual assault, the Chingcase
is not applicable since RA No. 8353 prescribed a grave penalty of
reclusion temporal for it (People vs. Bonaagua, G.R. No. 188897, June 6,
2011).
69. Terrorism - Terrorism is committing a predicate crime
which creates a condition of widespread and extraordinary fear and panic
among populace in order to coerce the government to give in to an
unlawful e.g. demand by Al Queda against the US not to interfere with the
affairs of the Muslim (Section of RA No. 9372). The predicate crimes of
terrorism are: Piracy, highway robbery, hijacking, rebellion, coup etat,
murder, kidnapping and serious illegal detention, crimes involving
destruction, arson, unlicensed firearm and explosives, violation of Toxic
Substances and Hazardous and Nuclear Waste Control Act and violation
of Atomic Energy Regulatory and Liability Act.
70. Trafficking in person - Accompanying a child and offering
her sexual services in exchange for money constitutes child prostitution.
The accused who offered the victim to the one who raped her is not liable
for rape as principal indispensable cooperation since bringing the victim to
the rapist is not indispensable to the commission of the crime of rape
(People vs. Dulay, GR No. 193854, September 24, 2012). If the accused
is regularly offering the sexual service of the child in exchange for money,
the crime committed is not anymore child prostitution. Maintaining or hiring
the child as purpose of prostitution constitutes qualified trafficking in
person because the former took advantage of vulnerability of the latter as
a child and as one who need money. Minority is qualifying circumstance
(People vs. Casio, G.R. No. 211465, December 03, 2014; People vs.
Hirang, G.R. No. 223528, January 11, 2017, Bersamin). Recruiting
without license a person, child or adult, to work as a prostitute abroad
constitutes the crime of trafficking in person and illegal recruitment.
Syndicate is qualifying circumstance in both crimes. Even if the accused is
less than three, but the allegation and evidence shows that there are at
least three traffickers and recruiters, syndicated can be appreciated as
qualifying circumstance (People vs. Lalli, G.R. No. 195419, October 12,
2011; People vs. Hashim, G.R. No. 194255, June 13, 2012).
71. Illegal recruitment - An employee may be held liable with
his employer, if the former actively and consciously participated in illegal
recruitment. The employee cannot escape liability by claiming that she
was not aware that before working for her employer in the recruitment
agency, she should first be registered with the POEA. Illegal recruitment in
large scale is malum prohibitum, not malum in se. Good faith is not a
defense (People vs. Valenciano, G.R. No. 180926, December 10, 2008).
72. RA No. 9165 - Accused were caught by police authorities
on board a speedboat carrying shabu. Since it was not proven that the
drugs came from China or foreign country they were convicted of
possession of dangerous drugs, which is necessarily included in the
charge of importation (People vs. Chan Liu, G.R. No. 189272, January 21,
2015).
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).
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).
a. Use of dangerous drugs - Where residue of dangerous
drugs is found and there is a positive confirmatory test result, the accused
should be charged with use rather than possession of dangerous drugs.
This would be in keeping with the intent of the law to rehabilitate first time
offenders of drug use and provide them with an opportunity to recover for
a second chance at life (People vs. Matinez, G.R. No. 191366, December
13, 2010).
Positive confirmatory test is an element of use of dangerous
drugs. However, the absence of such test cannot be raised as an issue for
the first time on appeal (Ambre vs. People, G.R. No. 191532. August 15,
2012).
Page 20 of 25
 b. Attempted sale - Poseur-buyer showed shabu for sale to
poseur buyer. The sale was aborted when the police officers immediately
placed accused under arrest. The crime committed is attempted sale
(People vs. Figueroa, G.R. No. 186141, April 11, 2012).
c. Coordination with PDEA - Lack of coordination with the
PDEA will not invalidate a buy-bust operation. Such coordination is not an
indispensable requirement in buy-bust operations (People vs. Mendosa,
G.R. No. 189327, February 29, 2012)
e. Seizure and custody - Although non-compliance with the
prescribed procedural requirements would not automatically render the
seizure and custody of the contraband invalid, that is true only when there
is a justifiable ground for such non-compliance, and the integrity and
evidentiary value of the seized items are properly preserved. Any
departure from the prescribed procedure must then still be reasonably
justified, and must further be shown not to have affected the integrity and
evidentiary value of the confiscated contraband (People vs. Barte, G.R.
No. 179749, March 30, 2017, Bersamin).
g. Chain of custody - The following links must be established
in the chain of custody in a buy-bust situation: first, the seizure and
marking, if practicable, of the illegal drug recovered from the accused by
the apprehending officer; second, the turn over of the illegal drug seized
by the apprehending officer to the investigating officer; third, the turn over
by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and fourth, the turn over and submission of the
marked illegal drugs seized from the forensic chemist to the court (People
vs. Constantino, Jr. GR No. 199689, March 12, 2014).
h. 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.
73. RA No. 3019 In Giangan vs. People, G.R. No. 169385,
August 26, 2015, Bersamin -Giangan as the barangay chairman acted
upon the honest and sincere belief that he was then summarily abating
the nuisance that a regular user of the obstructed road had just reported
to him. A further indication of the good faith of Giangan was the turning
over of the wooden posts to the police station, manifesting that the
accused were acting within the scope of their authority. Good faith means
honest, lawful intent; the condition of acting without knowledge of fraud,
and without intent to assist in a fraudulent or otherwise unlawful
scheme. Also, the act complained of was rendered inconsistent with the
manifest partiality and bad faith that the law punished. He was acquitted of
violation of Section 3 (e) of RA No. 3019 because the element of evident
bad faith is not present.
In People vs. Reyes, G.R. No. 177105-06, August 12, 2010,
Bersamin, the Court of Appeals (CA) rendered a decision reinstating the
title of the complainant. Provincial Adjudicator despite knowledge of the
CA decision still rendered his decision in a DARAB Case that completely
contradicted the CA decision by invalidating title of the complainant. He
displayed evident bad faith and manifest partiality by his arrogant refusal
to recognize and obey the CA decision causing undue injury to the
complainant and giving unawaarnted benefits to private individuals in
violation of Section 3 (e) of RA No. 3019.
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. However, the petitioner's task as Provincial
Adjudicator when he rendered judgment in a DARAB case to adjudicate
the claims of the opposing parties. As such, he performed a quasi-judicial
function, closely akin to the function of a judge of a court of law. He could
not be held liable for usurpation of judicial function were.
a. Arias principle - To apply the Arias rule for purposes of
exonerating an accused or respondent, the following requisites must be
present: (1) that the public officer in approving the release of public fund
must be relying to a reasonable extent on his subordinates (Jaca vs.
People, G.R. No. 166967, January 28, 2013); (2) that the documents
involving the release of funds must be so voluminous so as to preclude
him from studying each one carefully (Santillano vs. People, G.R. Nos.
175045-46, March 03, 2010); (3) that the public officer has no
foreknowledge of existing anomaly (Escara vs. People, G.R. No.
164921, July 8, 2005); and that there is not deviation from ordinary
procedure in the release of fund, which necessitate further investigation
(Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005;
Rivera vs. People, G.R. No. 156577, December 03, 2014).
City treasurer, city accountant and city administrator allowed
the release of cash advance in favor of a paymaster despite the fact that
she has previous unliquidated cash advances. They are liable because of
conspiracy of silence or inaction. Public officers omissions to question
irregularities indicate a common understanding and concurrence of
sentiments respecting the commission of the offense of causing undue
injury to the government through gross inexcusable negligence. This is
called conspiracy by silence (Jaca vs. People, G.R. No. 166967, January
28, 2013).
b. Inducement by means of money - Under Section 3 (a) of
RA No. 3019, a public officer, who persuades, induces or influences
another public officer to perform an act constituting a violation of rules and
regulations or an offense in connection with the official duties of the latter,
shall be punished for corruption. However, the deliberation in the Senate
regarding the bill on anti-graft shows that the mode of committing the
crime under Section 3 (a) is persuading, inducing or influencing a public
officer by another public officer to commit an offense or to violate rules
and regulations by means of consideration, reward, payment or
remuneration (Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006).
c. Transaction or contract - Section 3 (b) of RA No. 3019 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 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, G.R. No.
188165, December 11, 2013, Bersamin).
d. SALN - 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.
74. Money laundering - Money laundering is committed by
any person who, knowing that any monetary instrument or property
represents, involves, or relates to the proceeds of any unlawful activity:(a)
transacts said monetary instrument or property;(b) converts, transfers,
disposes of, moves, acquires, possesses or uses said monetary
instrument or property;(c) conceals or disguises the true nature, source,
location, disposition, movement or ownership of or rights with respect to
said monetary instrument or property;(d) attempts or conspires to commit
money laundering offenses referred to in paragraphs (a), (b) or (c);(e)
aids, abets, assists in or counsels the commission of the money
laundering offenses referred to in paragraphs (a), (b) or (c) above; and(f)
performs or fails to perform any act as a result of which he facilitates the
offense of money laundering referred to in paragraphs (a), (b) or (c)
above. Money laundering is also committed by any covered person who,
knowing that a covered or suspicious transaction is required under this Act
to be reported to the Anti-Money Laundering Council (AMLC), fails to do
so (Section 4 of RA No. 9160 as amended by RA No. 10365).
Unlawful activity refers to any act or omission or series or
combination thereof involving or having direct relation to the following: (1)
piracy, murder, distructive arson, kidnapping for ransom, crimes involving
dangerous drugs; (2) hijacking, carnapping, fencing, robbery, qualified
theft, and estafa; (3) bribery and corruption of public officers, frauds and
Illegal exactions, malversation, graft and corruption, and plunder; (4)
forgeries and counterfeiting; and (5) child pornography, photo-video
voyeurism, child abuse, crimes involving explosives and unlicensed
firearm, trafficking in person, illegal recruitment, terrorism and conspiracy
to commit terrorism, and financing of terrorism and; smuggling, and illegal
gambling.
75. Plunder - The elements of plunder are:
First - 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; (Note:
Senator Pogi can be held liable for plunder even if the principal offender,
who masterminded the plunder of pork barrel, is a private individual, the
Pork-barrel Queen. What is important is that Senator Pogi in connivance
with Pork-barrel Queen acquired ill-gotten wealth). On the other hand,
Page 21 of 25
Pork-barrel Queen can be held liable for plunder on the basis of
conspiracy.
Second - That he amassed, accumulated or acquired ill-gotten
wealth through a combination or series of the following overt or criminal
acts:
1. Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (Example:
Misuse of funds in the amount P10 million by awarding contract to a close
relative, who is not the lowest bidder; Misuse of funds or fraud disposition
of government asset to P100 million by diverting the construction of road
leading to his farm instead of the poblacion).
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.
2. 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; (Example:
Collecting or receiving commission from the sales of Belle Shares in the
amount of P189,700,000.00 which was deposited in the Jose Velarde
account and receiving bi-monthly collections from jueteng, a form of
illegal gamblingin the aggregate amount of P545,291,000.00 of which was
deposited in the Erap Muslim Youth Foundation (People vs. Joseph
Estrada, Criminal Case No. 26558, September 12, 2007).
3. By the illegal or fraudulent conveyance or disposition of
assets belonging to government (Example: Ordering the GSIS and the
SSS by President Estrada to purchase shares of stock of Belle
Corporation (People vs. Joseph Estrada, Criminal Case No. 26558,
September 12, 2007);
4. 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;
5. 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
6. By taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines;
Note: The word combination means at least two different
predicate crimes; while the term series means at least two predicate
crimes of the same kind (Ejercito vs. Sandiganbayan, G.R. Nos. 157294-
95, November 30, 2006). Thus, a single predicate crime amounting to 50
million pesos is not plunder. The intention of the lawmakers is that if there
is only one predicate crime, the offender has to be prosecuted under the
particular crime, which is already covered by existing laws. What is
punishable under the law is "acts of plunder", which means that there
should be at least, two or more, predicate crimes (See deliberation of the
Bicameral Committee on Justice, May 7, 1991).
Third - 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).
The damages suffered by the government in diverting the road
from the poblacion to the farm of the accused shall not be considered in
determining if plunder is committed. What is important is the amount of ill-
gotten wealth acquired by the public officer and not the amount of damage
suffered by the government.
In People vs. Joseph Estrada, Criminal Case No. 26558,
September 12, 2007 -One of the predicate crimes alleged in the
information is misappropriation of the excise tax share of Ilocos Sur. This
was not proven beyond reasonable doubt. However, the following
predicate crimes were alleged and proven by evidence (1) series of acts
of receiving collections from "jueteng" in the aggregate amount of
P545,291,000.00; and (2) series consisting of two acts of ordering the
GSIS and the SSS to purchase shares of stock of Belle Corporation and
collecting or receiving commission from the sales of Belle Shares in the
amount of P189,700,000.00. This pattern of criminal acts indicates an
overall unlawful scheme or conspiracy to amass ill-gotten wealth in the
amount of more than P50 million. Estrada was convicted of plunder.
There are two structures of multiple conspiracies, namely:
wheel or circle conspiracy and chain conpiracy. Under the wheel or circle
conspiracy, there is a single person or group (the "hub") dealing
individually with two or more other persons or groups (the "spokes").
Under the chain conspiracy, usually involving the distribution of narcotics
or other contraband, in which there is successive communication and
cooperation in much the same way as with legitimate business operations
between manufacturer and wholesaler, then wholesaler and retailer, and
then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927,
August 24, 2007). An illustration of wheel conspiracy wherein there is only
one conspiracy involved was the conspiracy alleged in the information for
plunder filed against former President Estrada and his co-conspirators.
Former President Estrada was the hub while the spokes were all the other
accused individuals. The rim that enclosed the spokes was the common
goal in the overall conspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth (GMA vs. People, G.R. No. 220598, July
19, 2016, Bersamin).
In case of several individuals are charged with plunder, the law
requires that there must be a main plunderer and her co-conspirators, who
may be members of her family, relatives by affinity or consanguinity,
business associates, subordinates or other persons (GMA vs. People,
G.R. No. 220598, July 19, 2016, Bersamin). In the Enrile vs. People, G.R.
No. 213455, August 11, 2015, if the allegation is true, the main plunder is
Senator Enrile. In People vs. Estrada, the main plunderer is the hub or
President Estrada.
If the main plunderer is unidentified, the total amount allegedly
acquired by several accused shall be divided for purposes of determining
if the P50 million threshold had been reached. In GMA vs. People, G.R.
No. 220598, July 19, 2016, ten persons, where charged of amassing,
accumulating and acquiring ill-gotten wealth aggregating to
P365,997,915.00 without identifying the main plunderer. As such, each of
the 10 accused would account for the aliquot amount of only
P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth,
which is far below the threshold value of ill-gotten wealth required for
plunder. In this situation, plunder is not committed.
If the main plunderer is identified, the total amount acquired by
him and his co-conspirators shall be considered in determining if the P50
million threshold had been reached. For example, if GMA was identified
as a main plunder, her acts and that of the other conspirators in amassing,
accumulating and acquiring ill-gotten wealth aggregating to
P365,997,915.00 shall be considered for purposes of determining if the
P50 million threshold had been reached. In this situation, plunder is
committed.
In Enrile vs. People, G.R. No. 213455, August 11, 2015, it was
stated that in the crime of plunder, the amount of ill-gotten wealth acquired
by Senator, his assistant, and a private individuals in a conspiracy is
immaterial for as long as the total amount amassed, acquired or
accumulated by them is at least P50 million.
67. Wire-tapping - MMDA officer is extorting money from a
driver of a vehicle, who committed trafficking violation along Edsa. The
officer threatened the driver that he will confiscate her drivers license
unless she will give him P500.00. However, MMDA officer is not aware
that his act of extorting money is being video-recorder by a passenger.
The passenger violated the Anti-Wire Tapping Law. The recording of
private conversations without the consent of the parties contravenes the
provisions of RA No. 4200. The law covers even those recorded by
persons privy to the private communications. The law is applicable even if
the conversation being recorder pertains to criminal extortion (Mamba vs.
Garcia, A.M. No. MTJ-96-1110, June 25, 2001). Passenger is criminally
liable for violating law. On the other hand, MMDA officer is liable for
attempted robbery. However, in proving attempted robbery, the driver
cannot use the recording since the same is not admissible in evidence.
66. Hazing - Prior to RA No. 8049, the consent of the victim to
hazing and lack of intent to kill will negate dolo. Hence, the crime
Page 22 of 25
committed only reckless imprudence resulting in homicide (Villareal vs.
People, G.R. No. 151258, February 1, 2012). Congress instead of
amending RPC created a special law (RA No. 8049) to make
hazing malum prohibitum, where consent of the victim and lack of intent to
kill is not a defense and the mitigating circumstance of praeter intentionem
shall not be appreciated (Dungo vs. People, G.R. No. 209464, July 01,
2015).
The elements of the crime of hazing are: (1) That there is an
initiation rite or practice as a prerequisite for admission into membership in
a fraternity, sorority or organization; (2) That there must be a recruit,
neophyte or applicant of the fraternity, sorority or organization; and (3)
That the recruit, neophyte or applicant is placed in some embarrassing or
humiliating situations such as forcing him to do menial, silly, foolish and
other similar tasks or activities or otherwise subjecting him to physical or
psychological suffering or injury (Dungo vs. People, supra; People vs.
Bayabos, G.R. No. 171222, February 18, 2015). Organization includes
companies, PNP, AFP (People vs. Bayabos). Even the president,
manager, director or other responsible officer of a corporation engaged in
hazing as a requirement for employment are covered by the law (Dungo
vs. People, supra).
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).
In hazing, criminal responsibility is based on (1) actual
participation in inflicting physical harm and inducement, (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).
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).
The accused claim that the information avers a criminal charge
of hazing by actual participation, but the only offense proved during the
trial was hazing by inducement. The information alleged that the accused
during a planned initiation rite and being then officers of APO fraternity
used personal violence upon a neophyte resulting to his death. The
"planned initiation rite" as stated in the information included the act of
inducing victim to attend it. Accused not only induced victim to be present
at the resort, but they actually brought him there. The hazing would not
have been accomplished were it not for the acts of the petitioners that
induced the victim to be present (Dungo vs. People, supra).
67. Cybercrime - The following constitute cybercrime offenses:
(1) Offenses against the confidentiality, integrity and availability of
computer data and systems; (2) Computer-related offenses; and (3)
content-related offenses (cyber libel, cybersex and cyber child
pornography).
68. Confidentiality of computer system - Offenses against
the confidentiality, integrity and availability of computer data and systems
are cybercrime under Section 4 of RA No. 10175.
Computer data refers to any representation of facts,
information, or concepts in a form suitable for processing in a computer
system including a program suitable to cause a computer system to
perform a function and includes electronic documents and/or electronic
data messages whether stored in local computer systems or online.
Computer system refers to any device or group of
interconnected or related devices, one or more of which, pursuant to a
program, performs automated processing of data. It covers any type of
device with data processing capabilities including, but not limited to,
computers and mobile phones. The device consisting of hardware and
software may include input, output and storage components which may
stand alone or be connected in a network or other similar devices. It also
includes computer data storage devices or media.
Offenses against the confidentiality, integrity and availability of
computer data and systems are:
a. Illegal Access Illegal access refer is committed by any
person, who shall access to the whole or any part of a computer system
without right. Ethical hackers are professionals who employ tools and
techniques used by criminal hackers but would neither damage the target
systems nor steal information. Since the ethical hacker does his job with
prior permission from the client, such permission would insulate him from
the coverage cybercrime law on illegal access (Disini vs. Secretary of
Justice, G.R. No. 203335, February 11, 2014).
b. Illegal Interception Illegal interception is committed by
any person, who shall intercept by technical means without right of any
non-public transmission of computer data to, from, or within a computer
system including electromagnetic emissions from a computer system
carrying such computer data.
c. Data Interference Data interference is committed by any
person, who shall intentionally, or recklessly alter, damage, delete or
deteriorate computer data, electronic document, or electronic data
message, without right, including the introduction or transmission of
viruses. This is considered as cyber vandalism.
d. System Interference System interference is committed by
any person, who shall intentionally alter or recklessly hinder or interfere
with the functioning of a computer or computer network by inputting,
transmitting, damaging, deleting, deteriorating, altering or suppressing
computer data or program, electronic document, or electronic data
message, without right or authority, including the introduction or
transmission of viruses.
e. Misuse of Devices Misuse of devise is committed by any
person, who shall use, produce, sell, procure, import, distribute, or
otherwise make available, or possession with intent to use, without right
any of the following: (1) a device, including a computer program, designed
or adapted primarily for the purpose of committing any cybercrime; or (2) a
computer password, access code, or similar data by which the whole or
any part of a computer system is capable of being accessed with intent
that it be used for the purpose of committing any cybercrime;
f. Cyber-squatting Cyber-squatting is committed by any
person, who shall acquire a domain name over the internet in bad faith to
profit, mislead, destroy reputation, and deprive others from registering the
same, if such a domain name is: (a) similar, identical, or confusingly
similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration; (b)
identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and (c) acquired without right or
with intellectual property interests in it.
69. Computer-related offense - The following are computer-
related offenses:
a. Computer-related forgery - Computer-related forgery is
committed by any person, who shall input, alter, or delete any computer
data without right resulting in inauthentic data with the intent that it be
considered or acted upon for legal purposes as if it were authentic,
regardless whether or not the data is directly readable and intelligible; or
who shall knowingly use computer data which is the product of computer-
related forgery for the purpose of perpetuating a fraudulent or dishonest
design.
b. Computer-related Fraud - Computer-related fraud is
committed by any person, who without authority shall input, alter, or delete
computer data or program or interfere in the functioning of a computer
Page 23 of 25
system with fraudulent intent causing damage thereby. The penalty is
lower if no damage has yet been caused.
c. Computer-related identity theft - Computer-related identity
theft is committed by any person, who shall intentionally acquire, use,
misuse, transfer, posses, alter or delete identifying information belonging
to another, whether natural or juridical, without right. The penalty is lower
if no damage has yet been caused.
Using the name of another person and his pictures in opening
a facebook account without authority constitutes cybercrime offense.
71. Content-related offenses - Content-related offenses
includes cyber libel, cybersex and cyber child pornography. A prosecution
for cybercrime offenses shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code or special laws
(Section 7). Despite of Section 7, the offender cannot be prosecuted for
cyber libel or cyber child pornography under RA No. 10175 in addition to
libel under RPC or child pornography under RA No. 9775 since this will
offend the constitutional rule on double jeopardy (Disini vs. Secretary of
Justice, G.R. No. 203335, February 11, 2014).
a. Cyber libel 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 Revised Penal Code, already
punishes it. Online defamation constitutes similar means for committing
libel (Disini vs. Secretary of Justice, G.R. No. 20335, February 18. 2014).
Cyber libel is an unlawful or prohibited act of libel as defined in
Article 355 of RPC committed through a computer system or any other
similar means which may be devised in the future. In case libel is
committed through use of information and communications technologies,
the penalty for libel under Article 355 of RPC shall be increased one
degree higher pursuant to Section 6 of RA No. 10175.
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).
b. Cybersex Cybersex under RA No. 10175 is committed by
any person, who shall wilfully engage, maintain, control, or operate,
directly or indirectly, any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
The element of "engaging in a business" is necessary to
constitute the illegal cybersex. The law actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e.,
by webcam. The deliberations of the Bicameral Committee of Congress
show a lack of intent to penalize a "private obscene showing between two
private persons although. (Disini vs. Secretary of Justice, G.R. No.
203335, February 11, 2014).
If the commission of cybersex involves lascivious exhibition of
sexual organs or sexual activity of a child, the offender may be prosecuted
for child pornography under RA No. 9775 qualified by the circumstance of
using computer system under RA No. 10175. However, the offender
cannot be prosecuted for both cybersex and qualified (or cyber) child
pornography because of the rule on double jeopardy (Disini vs. Secretary
of Justice, G.R. No. 203335, February 11, 2014).
If the commission of cybersex involves the maintenance of
trafficked victim, the offender may be prosecuted for trafficking in person
under RA No. 9208.
c. Cyber child pornography - In RA No. 9208 child
pornography is committed by electronic, mechanical, digital, optical,
magnetic or any other means, responsible persons are liable for child
pornography under RA No. 9775. RA No. 9775 is comprehensive enough
to include cyber pornography by requiring a child to show her private parts
to a client through the internet. If child pornography is committed through
a computer system, the crime committed is cyber child pornography under
RA No. 10175 and the penalty is one degree higher.
72. SPAM - Unsolicited commercial communications is
committed by any person, who shall transmit commercial electronic
communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services. Transmission of unsolicited
commercial communications is also known as "spam." In Disini case, the
provision of RA No. 10175 prohibiting spam is declared unconstitutional. It
was held that to prohibit the transmission of unsolicited ads would deny a
person the right to read his emails, even unsolicited commercial ads
addressed to him. The State cannot rob him of this right without violating
the constitutionally guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression.
73. Other cybercrime offense - Other cybercrime offense is
also committed by any person who shall wilfully abet or aid in the
commission of any of the cybercrime offenses or any person who wilfully
attempts to commit any of the cybercrime offenses (Section 5).
The provision on aiding or abetting cybercrime in relation to
cyber libel, child pornography and unsolicited commercial communication
was declared unconstitutional in the Disini case. The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those
who express themselves through cyberspace posts, comments, and other
messages. Hence, this provision that punishes "aiding or abetting" libel on
the cyberspace is a nullity since it encroaches upon freedom of speech on
grounds of overbreadth or vagueness of the statute.
A blogger who originally posted a libellous or child
pornographic message is liable for cybercrime. But netizens, who merely
reacted to the defamatory or child pornographic message on the
Facebook by clicking button for "Like," "Comment" or "Share" or on a
Tweeter account by retweeting it, are not liable for aiding or abetting
cybercrime.
But the provision on aiding or abetting cybercrime in relation to
other cybercrimes such as illegal access, illegal interception, data
interference etc. is declared constitutional.
74. Qualifying circumstance of use of information
technology - Use of information and communications technologies in
committing felony or offense under special law is a qualifying
circumstance under Section 6 of RA No. 10175.
Under Section 6 of RA No. 10175, the penalty for crimes
punishable under special laws committed through and with the use of
information and communication technologies shall be one degree higher
than that provided the law. However, this provision requires the
application of the rules on graduation of penalties under the Revised
Penal Code. Hence, Section 6 finds application only if special law involved
has adopted the technical nomenclature of the penalties of Revised Penal
Code.
(Warning: This is the intellectual property of Judge Campanilla. Copying any parts
of this work in writing materials or book for publication without proper attribution
is prohibited by law.)
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