Suggested Answers for the 2008 Bar Examinations Criminal Law

NOTA BENE: Brods, these are merely suggested answers found in different internet sites, lecture notes, and bar review materials. Please make the necessary cross and counter checking. Alta Pete, Brods and Good luck!

I a) After due hearing on a petition for a writ of amparo founded on the acts of enforced disappearance and extralegal killing of the son of the complainant allegedly done by the respondent military officers, the court granted the petition. May the military officers be criminally charged in court with enforced disappearance and extralegal killing? Explain fully. (3%) b) Are human rights violations considered as crimes in the Philippines? Explain. (3%)
Suggested Answer: a. Yes. But the designation of the acts should be the proper denominations as prescribed under the RPC or other special penal laws. The validity of a criminal information is not the technical designation in the RPC but the allegations that contain the elements of a felony. In this case, there is no such crime as enforced disappearances or extra-legal killing but could constitutte murder, homicide, kidnapping or arbitrary detention. b. No. Not all violations of human rights are considered as crime in the Philippines. Only those human rights violations which are clearly defined and punished by penal laws of the Philippines can be considered as crimes.

Alternative Answer for (a): No. The question is MAY the military officers be CRIMINALLY CHARGED in court. The state, through legislature, defines crimes, treats of their punishment and provide for their penalty. Enforced disappearance and extralegal killing has not yet been defined by law. It is not a crime.

II While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an oncoming tricycle, killing the tricycle driver. a) What is the criminal liability of Carlos, if any? Explain. (4%) b) What is the criminal liability of Paolo, if any? Explain. (4%)
Suggested Answer: a. Carlos has no criminal liability for a simple reason that Carlos was not committing a felony when he caused the death of the tricycle driver. The rule is that a person is criminally liable if a wrongful act which is not intended is a consequence of his felonious act. It is obvious that Carloss shooting at the rear wheel of his car, which is the proximate cause of the killing of the tricycle driver, is not a felonious act as the law allows a person to use necessary force to retain what belongs to him. The anti-carnapping law particularly deals with the theft and robbery of motor vehicles. Hence a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without the use of force upon things. It is clear that Paolo has committed and is criminally liable for

b.

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Suggested Answers for the 2008 Bar Examinations Criminal Law

the crime of carnapping having taken, with intent to gain, the car of Carlos without the latters consent. (People v. Lobitania, 2002)

Alternative Answer: a. Carlos is criminally liable.Reason: proximate cause and the means he used to protect his property is out of proportion and unreasonable constituting imprudence.he is therefore liable for the consequences of his act.

b. Qualified theft, there being no force or violence employed in the taking of the motor vehicle.

NOTA BENE: In my opinion, the suggested answer is more plausible compared to the alternative. I remember that my Criminal Law Review Professor, Atty. Nelson Salva, Chief City Fiscal of Manila, discussed this bar question in the same light. Just my two cents, brods.

III Olimpio caught a cold and was running a fever. His doctor prescribed paracetamol. Olimpio went to a drug store with the prescription, and the pharmacist sold him three (3) tablets. Upon arriving home, he took a tablet. One hour later, he had a seizure and died. The autopsy showed that the tablet he had taken was not paracetamol but a pill to which he was allergic. The pharmacist was charged with murder. Is the charge proper? If not, what should it be? Explain. (6%)
Suggested Answer: No, the information for murder filed against the pharmacist was not proper. While Olimpio died as a result of taking a pill that was mistakenly sold to him by the pharmacist, the pharmacist did not intend to kill Olimpio when he (the pharmacist) handed the said pill to the deceased. The absence of an intent to kill (animus occidendi or animus necandi) negated murder which is defined as the intentional killing of another person qualified by certain circumstances (treachery, taking advantage of superior strength, aid of armed men, employing means to weaken the defense or of means or persons to insure or afford impunity, in consideration of a price, reward, or promise, by means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin, on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity, with evident premeditation, with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse) which killing does not constitute infanticide or parricide. Moreover, murder requires that the circumstance that qualifies the killing be deliberately resorted to effect the killing. Here, the circumstance that may be arguably be used to argue for murder is the use of poison. However, the pharmacist gave the wrong pill to Olimpio without any knowledge that it will result to a fatal allergic reaction. He did not give the wrong pill on purpose. Nonetheless, a felony is committed either by dolo or by culpa, that is, either with criminal intent or thru negligence. Hence, while the pharmacist could not be properly charged with the intentional felonies of murder or homicide, he/she could still be held liable for the death of Olimpio under the charge of reckless imprudence resulting to homicide. Considering the nature of his work as a pharmacist, his inexcusable lack of precaution was the proximate cause of the death of Olimpio when the latter (Olimpio) took the pill that the pharmacist voluntarily, albeit without malice or criminal intent, gave him. Proximate cause is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. The giving of the wrong pill was the proximate cause of Olimpios taking it when he mistook it for paracetamol thereby causing his death. There is no contributory negligence on the part of Olimpio that could have served as an efficient intervening cause as he could reasonably expect the pharmacist to give him the correct medication because he even showed the pharmacist the doctors prescription. El que es causa de la

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Suggested Answers for the 2008 Bar Examinations Criminal Law

causa es causa del mal causado. (Mercury Drug Corporation v. De Leon, G.R. No. 165622, 17 October 2008; citing United States v. Pineda, 37 Phil. 456)
NOTA BENE: Sorry for the lengthy answer, brods. This is an extensive answer based on the 2008 San Beda Memory Aid in Criminal Law, and my personal notes during our discussions about this problem in Criminal Law Review class.

IV Manolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to Domeng his desire to borrow his revolver. Domeng lent it. Manolo shot Cece in Manila with Domengs revolver. As his gun was used in the killing, Domeng asked Mayor Tan to help him escape. The mayor gave Domeng P5,000 and told him to proceed to Mindanao to hide. Domeng went to Mindanao. The mayor was later charged as an accessory to Ceces murder. a) Can he be held liable for the charge? Explain. (4%) b) Can he be held liable for any other offense? Explain fully. (3%)
Suggested Answer: a. Mayor Tan cannot be liable as an accesory to Ceces' murder. Art. 19 of RPC provides that in order that Mayor Tan can be charged as an accesory, he harbored, concealed, or assisted in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Clearly, in the case at bar, he only helped an accomplice not the principal. b. Mayor Tan can be charged under P.D. No. 1829, the special law on Obstruction of Justice. PD 1829 penalizes the act of harboring or concealing, or facilitating the escape of any person he knows or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction. Under this special law, there is no specification of the crime to be committed by the offender for criminal liability to be incurred and the offender is no longer an accessory. He is simply an offender without regard to the crime committed by the person assisted to escape and he is penalized as a principal.

V Eman, a vagrant, found a bag containing identification cards and a diamond ring along Roxas Blvd. Knowing that it was not his, he went to the nearest police station to seek help in finding the owner of the bag. At the precinct PO1 Melvin attended to him. In the investigation Eman proposed to PO1 Melvin, in case you dont find the owner lets just pawn the ring and split the proceeds fifty-fifty (50/50). PO1 Melvin then went straight to the pawnshop and pawned the ring for P50,000. Eman never saw PO1 Melvin again. a) What is the criminal liability of Eman, if any? Explain. (3%) b) What is the criminal liability of PO1 Melvin, if any? Explain. (3%)
Suggested Answer: a. In the case at bar, Eman made offer to Melvin to pawn the ring and split the proceeds equally in case the owner is not found and the latter consented to the offer. It is submitted that Eman is liable for the crime of corruption of public

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Suggested Answers for the 2008 Bar Examinations Criminal Law

officials. Article 212 of the Revised Penal Code punishes the act of offering, promising, or giving gifts or presents to a public officer which would make the same (public officer) liable for direct bribery or indirect bribery. b. Melvin is liable for the crime of theft because although he is not a finder in fact, he is a finder in law. He assumes, by voluntary substitution, as to both property and its owner, the place occupied by Eman, the finder in fact. Furtive taking and misappropriation of the property found is the gist of this offense. Alternative Answers for (b): PO1 Melvin can be held liable for Malversation of public funds or property. Under the law, any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner will be held liable for theft. And since Eman deliver the property to the local authorities the same became in custodia legis. And since P01 Melvin became the custodian thereof by reason of the duties of his office, for which he is accountable and by appropriating the same he became liable. (People v. Ng Pek, G.R. No. L-1895, 2 October 1948; Dean Ortega Notes on Criminal Law 2008) P01 Melvin is liable for Estafa, with abuse of confidence, misappropriation and conversion. The moment PO1 Melvin receives in custody or in trust of the lost property(ring) from Eman the (Finder), the former aquires both physical and juridical possession, which gives the transferee or custodian a right over the thing which he may set up even against the true owner, or the finder (Eman). Conversely, by the overt act of pawning, the pawner (PO1 Melvin) enters into an implied agreement or warranty that he is the owner of the property pawned, and that he has a good right to possesion, materially and juridically. Thus, a depositary who receives the thing or property under the obligation involving the duty to make the delivery of the lost property (ring) or to return (the same to the real owner) pledges or pawns such property and uses it for disticnt purpose and accordingly commits estafa by conversion. (People v. Noveno; People v. Campos, G.R. No. 111535,19 July 2001)

VI Hubert and Eunice were married in the Philippines. Hubert took graduate studies in New York and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The first wife, Eunice, heard about the marriage and secured a copy of the marriage contract in New York. Eunice filed a case of bigamy against Hubert in the Philippines. a) Will the case prosper? Explain. (4%) b) If Eunice gave her consent to the second marriage, what will your answer be? Explain. (3%)
Suggested Answer: a. No, the case will not prosper. Penal laws of the Philippines are only enforceable within its territory. As the crime of bigamy in the facts provided was committed in New York, our courts cannot prosecute the case since it outside our territorial jurisdiction. My answer would be the same, again based on the principle of territoriality of crimes and criminal jurisdiction.

b.

VII The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong, took advantage of the confusion to settle

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Suggested Answers for the 2008 Bar Examinations Criminal Law

an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court. a) Was the charge of qualified piracy against the three persons (Max, Baldo and Bogart) who boarded the inter-island vessel correct? Explain. (4%) b) Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. (3%)
Suggested Answer: a. The charge is not correct. The facts of the case at bar do not indicate the seizure of the vessel by the perpetrators. All they did was fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry while the vessel was anchored at harbor of Kaoshiung, Taiwan. Absent the qualifying circumstance of seizure of the vessel, the perpetrators cannot be charged with qualified piracy. It is submitted that the perpetrators only committed a crime of simple piracy which, being a crime against the law of nations and thus an exception to the rule on territoriality in criminal law, is triable before the Philippine court. b. Dodong cannot be held liable for qualified piracy. One of the elements of qualified piracy is the offender must be a stranger to the vessel. It is clear that Dodong is only a passenger of the vessel attacked by the pirates. The crime committed by Dodong is murder which is triable before Philippine court, having been committed on board a Philippine registered vessel an exception to the territorial application of penal laws.

NOTA BENE: Suggested answer is based on Arts.122 and 123 of the Revised Penal Code, P.D.No.532, and People v. Lol-lo and Saraw 43 Phil. 19 (1922). This was the very same answer we discussed during our Criminal Law Review class.

VIII Francis and Joan were sweethearts, but their parents had objected to their relationship because they were first cousins. They forged a pact in writing to commit suicide. The agreement was to shoot each other in the head which they did. Joan died. Due to medical assistance, Francis survived. Is Francis criminally liable for the death of Joan? Explain. (5%)
Suggested Answer: Yes, Francis is criminally liable for giving assistance to suicide. Art. 253 of the RPC punishes the act of lending assistance to another to commit suicide to the extent of doing the killing himself.
NOTA BENE: Brods, the discussion on this topic can be found in the book of Justice Sandoval, as discussed and quoted in my classmates notes during our Criminal Law Review class.

Alternative Answer: Francis is liable of homicide for the death of Joan. Intent to kill is conclusively presumed when death resulted. The presence of intent to kill and the absence of any justifying circumstance and qualifying circumstances of murder in the killing of Joan are constitutive elements of the crime of homicide. It cannot be said that Francis committed a crime of giving assistance to suicide because the article under the RPC defining this crime contemplates of euthanasia where the victim is suffering from terminal illness.
NOTA BENE: An interesting discussion of Euthanasia and/or Mercy-killing is found in the books of Boado (Boado, Notes and Cases on RPC, 2004 ed., p. 614) and Reyes (Revised Penal Code, Book II, L. B. Reyes, 15th ed., 2001, pp. 480 and 482).

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Suggested Answers for the 2008 Bar Examinations Criminal Law

It seems that the two authorities have different views on the matter, as observed during the discussions in our Criminal Law Review class. Just my two cents, brods.

IX Dennis leased his apartment to Myla for P10,000 a month. Myla failed to pay the rent for 3 months. Gabriel, the son of Dennis, prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the payment. a) Did Gabriel commit a crime? Explain. (4%) b) Can Gabriel invoke his relationship with Dennis to avoid criminal liability? Explain. (3%)
Suggested Answers: a. Gabriel committed a crime of swindling by means of deceit. This crime is committed when the offender defrauded another by means of deceit and damage or prejudice capable of pecuniary estimation is caused to the offended party or third party. It is clear that by falsely representing to Myla that his father authorized him to collect the unpaid rentals which caused damage to Myla, Gabriel committed the crime of swindling by means of deceit. b. No, because the offended party in the case at bar is Myla not Dennis. Exemption from criminal liability in swindling (estafa) finds application only when the offender and offended party are relatives whose relationship is any of those in Art. 332 of the RPC. The facts show Gabriel and Myla are not relatives.

Alternative Answer: a. The crime committed was the complex crime of estafa thru falsification of private document committed against the father. As a necessary means of deceiving Myla, Gabriel falsified a private document (the demand letter). There was damage to the father, not to Myla, as the former was the one entitled to the payment made by Myla while Myla's payment could not be said to have caused her damage as such payment in fact extinguished her obligation to pay her arrears. In relation to the discussion in (a), Gabriel cannot invoke the absolutory cause of relationship under Article 332 of the RPC because that provision covers only the crimes of theft, estafa and malicious mischief. The complex crime of estafa thru falsification or theft thru falsification is outside its coverage.

b.

X Upon opening a letter containing 17 money orders, the mail carrier forged the signatures of the payees on the money orders and encashed them. What crime or crimes did the mail carrier commit? Explain briefly. (6%)
Suggested Answer: The mail carrier committed a crime of qualified theft, the property stolen being a mail matter. In the theft of mail matter, it is of no moment who the perpetrator is except where the offender be a public officer who has custody or control of the funds or property by reason of the duties of his office and he takes, appropriated, or misappropriated the mail matter, in which case the proper offense is malversation. In the case at bar, it is clear that the mail carrier, although a public officer, is not an accountable public officer. Alternative Answers:

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Suggested Answers for the 2008 Bar Examinations Criminal Law

When the mail carrier forged the signatures of the payees on the money orders and encashed them, he committed the crimes of malversation and falsification, the latter crime having been committed to conceal the malversation (People vs. Villanueva, 58 Phil 672). I believe the crime committed is the complex crime of estafa (with abuse of confidence) through falsification of public documents, under Art. 172, par. 1 of the RPC. It is a complex crime because falsification is a necessary means to commit the crime of estafa.

XI
Ricky was reviewing for the bar exam when the commander of a vigilante group came to him and showed him a list of five policemen to be liquidated by them for graft and corruption. He was further asked if any of them is innocent. After going over the list, Ricky pointed to two of the policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable? Explain. (7%) Suggested Answer: Ricky has no criminal liability. The fact that he did not report to the police that a crime has been committed is not a crime.In the case at bar, there was no overt act equivalent to a criminal offense. His inaction, although unethical, considering he is aspiring to be a lawyer, is not a crime under the law. Further, conspiracy cannot be presumed. Alternative Answer: Yes, Ricky is criminally liable as a principal by indispensable cooperation. A person is considered as a principal by indispensable cooperation when he cooperates in the execution of the offense by another act without which the crime would not have been accomplished. "He, who is the cause of the cause is the cause of the evil caused".

XII Raissa and Martin are married to each other but had been separated for the last five years. Raissa decided to wed Juan, her suitor, who had no inkling that she was married. Raissa and Juan accomplished an application for marriage license which they subscribed and swore to before the Local Civil Registrar. Raissa declared, in the application, that she is single. The marriage license was issued. In due time, the couple were married by the mayor. Raissa and Juan had their first sexual intercourse later in the evening. What crime or crimes, if any, did Raissa commit? Explain briefly. (7%)
Suggested Answer: Raissa comitted the following crimes: 1. Falsification of public or official document by a private individual. The act of Raissa in claiming a single status in the application for marriage license is an act of falsification falling under this crime; 2. False testimony in other cases and perjury in solemn affirmation. The act of Raissa swearing before a public officer (e.g. notary public) relative to her marriage license application constitutes this crime; 3. Adultery- Raissa's act of having sexual intercourse with a man other than her husband is adultery; and

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Suggested Answers for the 2008 Bar Examinations Criminal Law

4. Bigamy- Raissa's act of contracting a second or subsequent marriage before the former marriage has been legally dissolved constitutes bigamy. Alternative Answer: The crimes committed are: 1. the complex crime of bigamy thru falsification of public document. The falsification of the application for marriage license (a public document) was a necessary means for the commission of bigamy (that is, the contracting of the second marriage with Martin inspite of the existence of Raissa's first marriage). 2. adultery when Raissa had sexual intercourse with Martin after their "marriage." Raissa is still married to her husband of the first marriage when she had sexual intercourse with Martin because the second marriage (being bigamous) was void ab initio.

XIII Lucas had been the stay-in houseboy of spouses Nestor and Julia for five years. One night, while Nestor and Julia were out having dinner, Lucas and his friend Pedro gained entry into the masters bedroom with the use of a false key. They found Julias jewelry box in one of the cabinets which was unlocked. Lucas believed that Julias jewelry was inside the box. Unknown to Lucas and Pedro, the box was empty. Pedro took the box and left the bedroom with Lucas. They were shocked when they saw Nestor in the sala, pointing a gun at them. Nestor ordered them to stop and hand over the box. Pedro complied. It turned out that Nestor had just arrived in time to see Lucas and Pedro leaving the masters bedroom with the box. State with reasons, the crime or crimes, if any, Lucas and Pedro committed. (7%)
Suggested Answer: The crimes committed are: 1. Qualified Theft The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic erruption, or any other calamity, vehicular accident or civil disturbance. (As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980). 2. Art. 305. False keys. The term "false keys" shall be deemed to include: (1) The tools mentioned in the next preceding articles. (2) Genuine keys stolen from the owner. (3) Any keys other than those intended by the owner for use in the lock forcibly opened by the offender.

XIV Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy the judgment against him in favor of ABC Corporation, a government-owned or controlled corporation with an original charter. However, the representative of the corporation failed to attend the auction sale. Gonzalo, the winning bidder, purchased the property for P100,000 which he paid to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo lent the amount to Myrna, his officemate, who promised to repay the amount within two months, with interest thereon. However, Myrna reneged on her promise. Despite demands of ABC Corporation, Eliseo failed to remit the said amount.

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Suggested Answers for the 2008 Bar Examinations Criminal Law

a) State with reasons, the crime or crimes, if any, committed by Eliseo. (4%) b) Would your answer to the first question be the same if ABC Corporation were a private corporation? Explain. (3%)
Suggested Answer: a. The crime committed by Eliseo is malversation because the 100,000 pesos, which are public funds, are subject to his accountability. Having taken custody of the public funds, he is supposed to account for it by remitting the amount to the Clerk of Court. This he did not do. Instead he misappropriated the money by lending the same, with interest thereon, to his officemate Myrna. Yes. It is no legal consequence whether the property belongs to a private person or company. The seizure of the property or fund partakes of the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation.

b.

XV Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10,000 a month as protection money. With the monthly payments, Roger assured, the syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his establishment destroyed. Antonio refused to pay the protection money. Days later, at around 3:00 in the morning, Mauro, a member of the criminal syndicate, arrived at Antonios home and hurled a grenade into an open window of the bedroom where Antonio, his wife and their three year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded. State, with reasons, the crime or crimes that had been committed as well as the aggravating circumstances, if any, attendant thereto. (7%)
Suggested Answer: Three counts of murder were committed by Mauro. The killing was qualified by treachery because he employed means (hurling of grenade) which tended directly and especially to ensure the execution without risk to himself arising from the defense which the victims might make. It is settled that killing a person with treachery is murder even if there is no intent to kill. Roger is a principal by inducement. Being the leader of the syndicate it stands to reason that Roger induced Mauro to commit the crime. The murder was attended by the following aggravating circumstances. 1. 2. 3. 4. 5. Disregard of age of a 3-year old child The crime was committed by means of explosion The act was committed with evident premeditation. Superior strength Night time
NOTA BENE: Brods, this answer is based on our discussions in Criminal Law Review class regarding this bar exam problem. Please make the necessary cross and counter checking.

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