August - 2016 MATERIALS

UP LAW CENTER ​ ​ JUDGE

MARLO B. CAMPANILLA

1. MALUM PROHIBITUM and MALUM IN SE - It is

a general principle in law that in malum prohibitum case, good
faith or motive is not a defense because the law punishes the
prohibited act itself. However, if fraudulent intent is expressly
mentioned as an element thereof, good faith or lack of criminal
intent is a defense (Saguin vs. People, G.R. No. 210603,
November 25, 2015).

Criminal law has long divided crimes into acts wrong in

themselves called acts mala in se; and acts which would not be
wrong but for the fact that positive law forbids them, called
acts mala prohibita. This distinction is important with reference
to the intent with which a wrongful act is done. The rule on the
subject is that in acts mala in se, the intent governs; but in
acts mala prohibita, the only inquiry is, has the law been
violated? When an act is illegal, the intent of the offender is
immaterial. When the doing of an act is prohibited by law, it is
considered injurious to public welfare, and the doing of the
prohibited act is the crime itself (Dungo vs. People, G.R. No.
209464, July 1, 2015).

A common misconception is that all mala in se crimes are

found in the Revised Penal Code (RPC), while all mala
prohibita crimes are provided by special penal laws. In reality,
however, there may be mala in se crimes under special laws,
such as plunder under R.A. No. 7080, as amended. Similarly,
there may be mala prohibita crimes defined in the RPC, such as
technical malversation (Dungo vs. People, supra).
The better approach to distinguish between mala in
se and mala prohibita crimes is the determination of the
inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a
crime mala in se; on the contrary, if it is not immoral in itself,
but there is a statute prohibiting its commission by reasons of
public policy, then it is mala prohibita. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the circumstances
surrounding the violation of the statute (Dungo vs. People,
supra).
 2. PRAETER INTENTIONEM - Accused kicked and
punched the victim, who died as a consequence. Circumstance
shows lack of intent to kill. However, accused is liable for
homicide because intent to kill is conclusively presumed. Even
if there is no intent to kill, the penal law holds the aggressor
responsible for all the consequences of his unlawful acts.
However, they are entitled to the mitigating circumstance of
praeter intentionem (Wacoy vs. People, G.R. No. 213792, June
22, 2015).

Article 49 applies only to error in personae. This provision

is neither applicable to aberratiu ictus (Guillen case) nor to
praeter intentionem (Wacoy vs. People, G.R. No. 213792, June
22, 2015). In Wacoy vs. People, G.R. No. 213792, June 22,
2015 - Accused kicked and punched the victim, who died as
consequence. It appears that their purpose is merely maltreating
or inflicting physical harm, and not to end the life of the victim.
Even if there is no intent to kill, the crime is homicide because
with respect to crimes of personal violence, the penal law looks
particularly to the material results following the unlawful act
and holds the aggressor responsible for all the consequences
thereof. However, they are entitled to the mitigating
circumstance of praeter intentionem or lack of intention to
commit so grave a wrong under Article 13 (3).

3. ABERRATIU ICTUS – In People vs. Adriano, G.R.

No. 205228, July 15, 2015 - Accused treacherously shot his
intended victim. A bystander, was also hit by reason of mistake
of blow. Both victims died. Accused is responsible not only for
the death of the intended victim but also for the death of the
third person, who was hit by a stray bullet. He is liable for two
separate crimes of murder. This is not a compound crime since
there is no showing that the victims were killed by single act but
several acts. When various victims expire from separate shots,
such acts constitute separate and distinct crimes. Treachery will
be appreciated even though one was killed because of aberratio
ictus. In People vs. Flora and Flora, G.R. No. 125909, June 23,
2000, the accused was convicted of two separate counts of
murder: for the killing of two victims, Emerita, the intended
victim, and Ireneo, the victim killed by a stray bullet. The Court,
due to the presence of the aggravating circumstance of treachery,
qualified both killings to murder.

4. UNLAWFUL AGGRESSION – The act of pulling

"something" out cannot constitute unlawful aggression (People
vs. De Leon, GR No. 197546, March 23, 2015).

5. INSANITY – In order for the accused to be exempted

from criminal liability under a plea of insanity, he must
categorically demonstrate that: (1) he was completely deprived
of intelligence because of his mental condition or illness; and (2)
such complete deprivation of intelligence must be manifest at
the time or immediately before the commission of the offense
(Verdadero vs. People, G.R. No. 216021, March 02, 2016).

6. ACCESSORY - It is not necessary that the principal

should be first declared guilty before an accessory can be made
liable as such (People vs. Billon, C.A., 48 O.G. 1391). One can
be held liable as an accessory even if the principal was not
convicted because he is at large (People vs. Inovera, 65 O.G.
3168); or he died or is unidentified, or was acquitted due to
technicality (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).

The English text of Article 19 of RPC, which provides

“whenever the author of the crime is guilty of treason x x x.”, is
an inaccurate translation of the Spanish text. Settled is the rule
that the Spanish text prevail over the English text (People vs.
Billon).

7. ACCESSORY AND OBSTRUCTION OF JUSTICE -

A truck with illegal lumber was confiscated. After the
confiscation, the accused unlawfully took it from the authorities.
Accused is not liable as an accessory since he did not conceal
the instrument of the crime for the purpose of preventing the
discovery of the crime. Illegal possession of lumber had already
been discovered at the time the accused took the confiscated
truck. However, accused is liable for obstruction of justice under
P.D. 1829. The truck that carried the undocumented lumber
serves as material evidence that is indispensable in the criminal
investigation and prosecution for illegal possession of lumber. It
is an indispensable link to the persons involved in the illegal
possession of the lumber. Accused took the truck or
intentionally suppressed the truck as evidence, with the intent to
impair its availability and prevent its use as evidence in the
criminal investigation or proceeding for illegal possession of
lumber. Such suppression is punishable under PD No. 1829
(Padiernos vs. People, G.R. No. 181111, August 17, 2015).

8. 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 2, 2015).

​ . RECLUSION PERPETUA - Persons convicted of

9
offenses punished with reclusion perpetua, or whose sentences
will be reduced to reclusion perpetua shall not be eligible for
parole (Section 3 RA No. 9346). In cases where reclusion
perpetua is imposable, there is no need to use the phrase
"without eligibility for parole" to qualify the penalty of reclusion
perpetua. But it is understood that convicted persons penalized
with this penalty are not eligible for parole in accordance with
Section 3 of RA No. 9346. In cases where death penalty is
imposable, but the same is reduced to reclusion perpetua
because of RA No. 9346, the phrase "without eligibility for
parole" shall be used to qualifyreclusion perpetua in order to
emphasize that the accused should have been sentenced to suffer
the death penalty had it not been for RA No. 9346 (A.M. No. 15-
08-02-SC, August 04, 2015).

​ eclusion perpetua, which has duration of 40 years under

R
Article 27 of RPC and 30 years under Article 29 of RPC as
amended by RA No. 10592, is a lighter penalty than life
imprisonment, which has no duration. Hence, amendatory law,
which prescribes reclusion perpetua instead of life imprisonment
for a crime punishable under it, is favorable to the accused; and
thus, it shall be given a retroactive effect (People vs. Morilla,
GR No. 189833, February 05, 2014; People vs. Pang, G.R. No.
176229, October 19, 2011).
 ​ 0. SUPPLETORY APPLICATION – RPC is not
1
generally applicable to malum prohibitum. However, when a
special law (such as RA No. 10591 on illegal possession of loose
firearm), which punishes malum prohibitum, adopts the
nomenclature of the penalties in RPC, the 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 (People vs. Montalaba, G.R. No.
186227, July 20, 2011; (2) Article 62 on special mitigating
circumstance of syndicated or organized crime group (People vs.
Musa, G.R. No. 199735, October 24, 2012); (3) Article 64 on
application of penalty in its minimum period if there is a
confession (Jacaban vs. People, GR No. 184355, March 23,
2015; Malto vs. People, G.R. No. 164733, September 21, 2007);
and (4) Article 160 on special aggravating circumstance of
quasi-recidivism (People vs. Salazar, G.R. No. 98060, January
27, 1997).

11. 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 or remitted the accessory penalty of
perpetual absolute disqualification. Under Article 36 of the
Revised Penal Code, a pardon shall not work the restoration of
the right to hold public office unless such right be expressly
restored by the terms of the pardon. Under Article 41, the
penalty of reclusion perpetua shall carry with it perpetual
absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon (2015 Bar
Exam).
President Estrada, who was convicted of plunder and sentenced to suffered reclusion perpetua,
was pardoned by President Arroyo. He is eligible to run as Mayor because the terms of the pardon
expressly restored his “civil and political rights,”which naturally includes the right to seek public elective
office. Pardon at issue which declares that former President Estrada "is hereby restored to his civil and
political rights" substantially complies with the requirement of express restoration (Risos-vidal vs. Lim,
G.R. No. 206666, January 21, 2015).

The pardoning power of the President cannot be limited by legislative action. This power is
conferred by the Constitution; hence, only the Constitution can limit the exercise thereof. The only
instances in which the President under the Constitution may not extend pardon are as follows: (1)
impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in which there was no favorable recommendation
coming from the COMELEC (Risos-vidal vs. Lim, G.R. No. 206666, January 21, 2015).

12. PROBATION - Under Section 9 of PD No. 968, the

benefits of the probation shall not extend to those who have
previously been convicted by final judgment of an offense
punished by imprisonment of not less than 1 month and 1 day
and/or a fine of not less than P200. But RA No. 10707, which
was approved on November 26, 2015, has amended PD No. 968
by increasing the penalty for the offense under previous
conviction, which will constitute a bar to probation for the
offense under the present conviction. Under PD No. 968 as
amended by RA No. 10707, the benefits of the probation shall
not extend to those who have previously been convicted by final
judgment of an offense punished by imprisonment of more than
6 months and 1 day and/or a fine of more than P1,000.However,
even if the penalty for the offense under previous conviction is
lesser than that as stated above, one cannot avail of probation
for the offense under present conviction if he already availed of
the benefit of probation for the previous offense.

Under the original version of PD No. 968, alarm and

scandal and direct assault were probationable since the penalties
prescribed for these crimes are not more than 6 years of
imprisonment. However, on October 5, 1985, PD 1990 had
amended Section 9 of PD No. 968 by making crimes against
public disorder non-probationable. Hence, the benefits of PD
No. 968 as amended by PD 1990 could not be extended to those
convicted of direct assault (2012 Bar Examination) and alarm
and scandal (2013 Bar Examination) because these are crimes
against public disorder. However, RA No. 10707, which was
approved on November 26, 2015, has amended PD No. 968 by
deleting crime against public disorder in Section 9 thereof. In
sum, under the present law on probation, alarm and scandal and
direct assault are now probationable.

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 upon remand of the case to
the RTC because of the following reasons: (1) The Probation
Law never intended to deny an accused his right to probation
through no fault of his; (2) If the accused will not be allowed to
apply for probation, he will be made to pay for the trial court’s
erroneous judgment; (3) While it is true that probation is a mere
privilege, the accused has the right to apply for that privilege;
(4) Under the law, appealing from judgment of conviction is a
waiver right to appeal. In this case, the accused did not appeal
from the judgment of a conviction for attempted homicide
rendered by the appellate court.

In Villareal vs. People, G.R. No. 151258, December 1,

2014, accused was convicted of homicide, a non-probationable
crime, by the trial court. However, the SC found them liable for
reckless imprudence resulting in homicide, which is a
probationable crime, because of lack of dolo. They can still
apply for probation. The SC reaffirmed the Colinares principle.

RA No. 10707, which was approved on November 26,

2015, has adopted the Colinares doctrine. Under Section 4 of
PD 968 as amended by RA No. 10707, 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.

Probation is not a mode of extinguishing criminal liability

under Article 89 of RPC. Hence, the discharge of the
probationer shall not extinguish his criminal liability. The
essence of probation is the suspension of the execution of
sentence. Thus, the criminal liability remains despite of the
discharge of the probationer but the sentence will not be served
(Villareal vs. People, G.R. No. 151258, December 01, 2014).
However, this rule is not anymore controlling because of the
amendments introduced by RA No. 10707. Under Section 16 of
PD No. 968 as amended by RA 10707, the final discharge of the
probationer shall operate to restore to him all civil rights lost or
suspended as a result of his conviction and to totally extinguish
his criminal liability as to the offense for which probation was
granted. In sum, probation is now a mode of extinguishing
criminal liability in addition to those mentioned in Article 89 of
RPC.

CRIMES AGAINST PERSONAL LIBERTY AND

 SECURITY

​ 3. Under the Spanish Penal Code, the modes of

1
committing illegal detention are "Secuestrare" and "Encerrare".
"Secuestrare" means sequestration or imprisonment.
"Encerrare" includes not only the imprisonment of a person but
also the deprivation of his liberty in whatever form and for
whatever length of time (People vs. Baldago, G.R. No. 128106-
07, January 24, 2003). There is deprivation of liberty if the
victim was left in a place from which she did not know her way
back home (People vs. Jacalney, GR No. 168552, October 03,
2011)even if she had the freedom to roam around the place of
detention. For under such a situation, the child’s freedom
remains at the mercy and control of the abductor (People vs.

Baluya, GR No. 181822, April 13, 2011).

14. THREATS - What is the difference among grave

threats, light threats and other light threats? In grave threats, the
wrong threatened amounts to a crime which may or may not be
accompanied by a condition. In light threats, the wrong
threatened does not amount to a crime but is always
accompanied by a condition. In other light threats, the wrong
threatened does not amount to a crime and there is no condition
(Calauag vs. People, (G. R. No. 171511, March 4, 2009).

​ 5. BLACKMAIL - Blackmailing may constitute: (1)

1
Light threats under Article 283; (2) Threatening to publish, or
offering to prevent the publication of, a libel for compensation
under Article 356; and (3) robbery with intimidation against
person. Example: X, DENR officer, threatened to confiscate the
hot logs from complainant and prosecute it for illegal logging
unless the latter will give her P100,000. Complainant gave X the
amount demanded. The crime committed is robbery with
intimidation (extortion). In robbery with intimidation of
persons, the intimidation consists in causing or creating fear in
the mind of a person or in bringing in a sense of mental distress
in view of a risk or evil that may be impending, real or
imagined. Such fear of injury to person or property must
continue to operate in the mind of the victim at the time of the
delivery of the money. In this case, the P100,000.00 "grease
money" was taken by X from complainant through intimidation.
By using her position as the DENR officer, X succeeded in
coercing the complainants to choose between two alternatives:
to part with their money, or suffer the burden and humiliation of
prosecution and confiscation of the logs (Sazon vs.
Sandiganbayan, G.R. No. 150873, February 10, 2009).

CRIMES AGAINST PUBLIC ORDER

16. 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.

CRIMES AGAINST PUBLIC INTEREST

17. FALSIFICATION OF DOCUMENT – In falsification

of private document involving making untruthful statement in a
narration of facts, the existence of a specific law imposing
obligation to disclose the truth is not indispensable to make one
liable for this crime. What is important is legal obligation to
disclose the truth. In Manansala vs. People, G.R. No. 215424,
December 09, 2015, the accused was held liable for falsification
of document involving a petty cash replenishment report of a
private company because he has a legal obligation to disclose
the truth of the facts narrated by him.

In Article 315 of the Revised Penal Code, the damage

which is an element of estafa must be capable of pecuniary
estimation. In Article 172, the element of damage is falsification
of private document is not required to be capable of pecuniary
estimation. The Spanish text of this provision uses the word
“perjuicio” (prejudice). Thus, falsification of private document,
which prejudices a third person, is a felony. In Manasala case,
the offended party was dismissed from service because of the
false report that he made cash advances from the company
without liquidating on time. The accused was convicted of
falsification of private document since the offended party was
prejudice by such falsification.
 The offender is considered to have taken advantage of his
official position, which is an element of falsification of
document by a public officer when (1) he has the duty to make
or prepare or otherwise to intervene in the preparation of a
document; or (2) he has the official custody of the document
which he falsifies (People vs. Sandiganbayan, G.R. No. 197953,
August 05, 2015).

In falsification of public or official documents, it is not

necessary that there be present the idea of gain or the intent to
injure a third person because in the falsification of a public
document, what is punished is the violation of the public faith
and the destruction of the truth as therein solemnly proclaimed

(People vs. Sandiganbayan, G.R. No. 197953, August 05, 2015).

Under Article 48 of the RPC, when a single act constitutes

two or more crimes, a complex crime is committed for which
only one penalty is imposed. Complex crimes under Article 48
refer to either (1) an act which constitutes two or more grave or
less grave offenses; or (2) an offense which is a necessary means
for committing another. The phrase "necessary means" in
[17]

Article 48 does not mean indispensable; otherwise, the offense

as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient
thereof. For instance, the crime of simple estafa is ordinarily
committed in the manner defined under the RPC; but if the
accused resorts to falsification merely to facilitate and insure the
commission of estafa, then he is guilty of the complex crime of
estafa through falsification (David vs. People, G.R. No. 208320,
August 19, 2015).

In this case, it was duly proven during the trial that

petitioner falsified several BOC Form No. 38-A, a commercial
document, in order to facilitate and insure the commission of
estafa. BOC Form No. 38-A is a commercial document used by
authorized collecting banks, such as Land Bank, as official
receipt for the payment of additional or deficiency customs taxes
and duties. The falsification of the BOC forms, which are
commercial documents, was a necessary means to commit estafa
(David vs. People, G.R. No. 208320, August 19, 2015).

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).

I​ n falsification of public or official documents, it is not

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

18. MALVERSATION - The crime of malversation of

public funds has the following elements, to wit: (a) that the
offender is a public officer; (b) that he had the custody or control
of funds or property by reason of the duties of his office; (c) that
the funds or property were public funds or property for which he
was accountable; and (d) that he appropriated, took,
misappropriated or consented or, through abandonment or
negligence, permitted another person to take them (Mesina vs.
People, G.R. No. 162489, June 17, 2015).

Accountable officer – 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) such as a principal of a public high school entrusted
with public funds. such as a principal of a public high school
entrusted with public funds (Torres vs. People, GR No. 175074,
August 31, 2011) or a cashier, treasurer, collector, property
officer or any other officer or employee who is tasked with the
taking of money or property from the public which they are
duty-bound to keep temporarily until such money or property
are properly deposited in official depository banks or similar
entities; or until they shall have endorsed such money or
property to other accountable officers or concerned offices
(Panganiban vs. People, G.R. No. 211543, December 09, 2015).

However, 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 or has participated in the use or application of thereof
(Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015).

A mayor as far as the money in the local treasury is

concerned is an accountable officer because the mayor and the

treasurer have duty to participate in the release of funds. Their

signatures are needed to disburse municipal funds. No payment
can be effected without their signatures. They had control and
responsibility over the funds; hence, they are accountable officer
(Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February
08, 2012). But a mayor as far as cash advance for travel is
concerned is not an accountable officer (Panganiban vs. People,
G.R. No. 211543, December 09, 2015).

However, a non-accountable officer or private individual

can be held liable for malversation if he conspires with an
accountable officer in committing the crime (People vs. Pajaro,
G.R. Nos. 167860-65, June 17, 2008). Moreover, private
individuals can be held liable for malversation if he in any
capacity whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any administrator
or depository of funds or property attached, seized or deposited
by public authority, even if such property belongs to a private
individual (Article 222 of the Revised Penal Code).

The grant of loans through the "vale" system is a clear case

of an accountable officer consenting to the improper or
unauthorized use of public funds by other persons, which is
punishable by the law. To tolerate such practice is to give a
license to every disbursing officer to conduct a lending
operation with the use of public funds. There is no law or
regulation allowing accountable officers to extend loans to
anyone against "vales" or chits given in exchange by the
borrowers. On the other hand, the the Commission on Audit
time and again, through repeated office memoranda and rulings
had warned against the acceptance of "vales" or chits by any
disbursing officer because such transactions are really forms of
loans (Meneses vs. Sandiganbayan, G.R. No. 100625 May 20,
1994).

​ olo or culpa – Malversation may be committed either

D
through a positive act of misappropriation of public funds or
property, or passively through negligence. To sustain a charge
of malversation, there must either be criminal intent or criminal
negligence. If the accused is charged of intentional malversation,
but evidence shows that the crime is committed through
negligence, he can be convicted of culpable malversation
because of the variance rule. Dolo or culpa is just a mode of
committing malversation. Even if the mode charged differs
from mode proved, accused can still be convicted of

malversation (Torres vs. People, GR No. 175074, August 31,

2011).

19. In Ruzol vs. Sandiganbayan, GR Nos. 186739-960,

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

Accused chose to exercise the right to protect the

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

There is no showing that accused possessed that “criminal

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

Good faith is a defense in criminal prosecutions for

usurpation of official functions. The requirement of permits to
transport was accused’s decision alone; it was a result of the
collective decision of the participants during the Multi-Sectoral
Consultative Assembly. If, indeed, accused intended to usurp the
official functions of the DENR, he would not have asked the
presence of a DENR official who has the authority and
credibility to publicly object against accused’s allegedly
intended usurpation. Thus, the presence of DENR official
during the Multi-Sectoral Assembly strengthens accused’s claim
of good faith.

The DENR is not the sole government agency vested with

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

20. Failure To Render Accounting - In People vs.

Lumauig, G.R. No.166680, July 7, 2014 - Article 218 of RPC

consists of the following elements: (1) that the offender is a

public officer, whether in the service or separated therefrom; (2)
that he must be an accountable officer for public funds or
property; (3) that he is required by law or regulation to render
accounts to the Commission on Audit, or to a provincial auditor;
and (4) that he fails to do so for a period of two months after
such accounts should be rendered.

Petitioner received cash advance for payment of the

insurance coverage of motorcycles purchased by the
Municipality in 1994. Under COA Circular, petitioner is
required to liquidate the same within 20 days after the end of the
year or on or before January 20, 1995. To avoid liability under
Article 218, he should have liquidated the cash advance within
two months from the time it was due, or on or before March 20,
1995. Petitioner was liable for failure to render account under
Article 218 because it took him over six years before settling his
accounts. Demand before an accountable officer is held liable
for a violation of the crime is not required. Article 218 merely
provides that the public officer be required by law and
regulation to render account.

21. Technical Malversation - In Dela Cuersta vs.

Sandiganbayan, G.R. Nos. 164068-69, November 19, 2013 -
The informations alleged that accused as members of the
Philippine Coconut Authority, acting in conspiracy with each
other and with evident bad faith and manifest partiality, gave
financial assistance to COCOFED, a private entity, without an
appropriate budget, giving unwarranted benefit to the same and
causing undue injury to the Government.
 The element in the crime of technical malversation that
public fund be appropriated for a public use requires an
earmarking of the fund or property for a specific project. For
instance there is no earmarking if money was part of the
municipality’s “general fund,” intended by internal arrangement
for use in paving a particular road but applied instead to the
payrolls of different barangay workers in the municipality. That
portion of the general fund was not considered appropriated
since it had not been earmarked by law or ordinance for a
specific expenditure. Here, there is no allegation in the
informations that the P2 million and P6 million grants to
COCOFED had been earmarked for some specific expenditures.
​
What is more, the informations do not allege that the

subject P2 million and P6 million were applied to a public use

other than that for which such sums had been appropriated.
Quite the contrary, those informations allege that those sums
were unlawfully donated to “a private entity,” not applied to
some public use. Clearly, the constitutional right of the accused
to be informed of the crimes with which they are charged would
be violated if they are tried for technical malversation under
criminal informations for violation of Section 3(e) of R.A.
3019 filed against them.
​
22. Knowingly Rendering Unjust Judgment - To
commit the offense of knowingly rendering an unjust judgment,
the offender must be a judge who is adequately shown to have
rendered an unjust judgment, not one who merely committed an
error of judgment or taken the unpopular side of a controversial
point of law. The term knowingly means “sure knowledge,
conscious and deliberate intention to do an injustice.” Thus, the
complainant must not only prove beyond reasonable doubt that
the judgment is patently contrary to law or not supported by the
evidence but that it was also made with deliberate intent to
perpetrate an injustice. Good faith and the absence of malice,
corrupt motives or improper consideration are sufficient
defenses that will shield a judge from the charge of rendering an
unjust decision. In other words, the judge was motivated by
hatred, revenge, greed or some other similar motive in issuing
the judgment. Bad faith is, therefore, the ground for
liability. The failure of the judge to correctly interpret the law or
to properly appreciate the evidence presented does not
necessarily render him administratively liable(Re: Verified
Complaint for Disbarment of AMA LAnd Inc. against CA
Association Justice Bueser et.al., OCA IPI No. 12-204-CA-J,
March 11, 2014).

23. INFIDELITY IN THE CUSTODY OF

DOCUMENTS - The elements of Infidelity in the Custody of
Documents under Article 226 of the RPC are: (1) The offender
must be a public officer; (2) There must be a document
removed, destroyed or concealed; (3) The document destroyed
or removed must be entrusted to such public officer by reason of
his office; and (4) Damage or prejudice to the public interest or
to that of a third person must be caused by the removal,
destruction or concealment of such document (Zapanta vs.
People, GR No. 192698-99, April 22, 2015). Differences
between infidelity in the custody of document and estafa under
Article 315 (3) (c) of RPC: (1) In both crimes, the offender

removed, concealed or destroyed document; (2) in infidelity of

the custody of document, the offender is a public officer
entrusted with the document; while in estafa, the offender is a
private individual; (3) In estafa, intent to defraud is an element;
but this is not element of infidelity in the custody of document.

CRIMES AGAINST PERSONS

24. PARRICIDE - Parricide is committed when: (1) a

person is killed; (2) the deceased is killed by the accused; and
(3) the deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other ascendant or
other descendant, or the legitimate spouse of the accused. The
key element in Parricide - other than the fact of killing - is the
relationship of the offender to the victim (People vs. Guting,
G.R. No. 205412, September 09, 2015).

In parricide, if the victim is his father, mother, or child, the

relationship can either be legitimate or illegitimate; if the victim
is the spouse, other ascendant such as grandparent or other
descendant such as grandchild, the relationship must be
legitimate (People vs. Gamez, GR No. 202847, October 23,
2013).
 ​ 5. Excessive Chastisement - “X” tied his son to a
2
coconut tree and, there after hit on his right eye and right leg. As
a consequence, his son sustained injuries that would heal in one
week upon medication. Is “X” liable for slight physical injuries
despite the fact that his intention in beating his son is merely to
discipline him? Yes. “X” cannot evade criminal culpability by
the circumstance that he merely intended to discipline his son
(People vs. Sales, G.R. No. 177218, October 3, 2011).

26. DEATH IN A TUMULTOUS 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.

27. STAGES OF RAPE – Touching of either labia majora

or labia minora of the pudendum by an erect penis 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). 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). If there is no
touching of the labia, the crime is either attempted rape or acts
of lasciviousness depending upon the intent the offender. If the
intention is to have sexual intercourse, the crime is attempted
rape; otherwise, the crime is acts of lasciviousness.

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) 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.

To be held liable of attempted rape, it must be shown that

the erectile penis is in the position to penetrate (Cruz vs. People,
G.R. No. 166441, October 08, 2014) or the offender actually
commenced to force his penis into the victim's sexual organ
(People vs. Banzuela, supra). 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 (Cruz vs.
People, supra; People vs. Lamahang).

In People vs. Nuyok, G.R. No. 195424, June 15, 2015, 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.

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).

28. SWEETHEART THEORY - In rape, the "sweetheart"

defense must be proven by compelling evidence: first, that the
accused and the victim were lovers; and, second, that she
consented to the alleged sexual relations. The second is as
important as the first, because this Court has held often enough
that love is not a license for lust (People vs. Victoria, G.R. No.
201110, July 06, 2015).
29. CHILD ABUSE - Under Section 10 (a) of RA No. 7610, child abuse or cruelty is committed
by any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible
for other conditions prejudicial to the child’s development including those covered by Article 59 of PD
No. 603 but not covered by the RPC.

Under Section 3 (b), "child abuse" refers to the maltreatment, whether habitual or not, of the child
which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse
and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs
for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured
child resulting in serious impairment of his growth and development or in his permanent incapacity or
death.

Section 10 (a) punishes not only those enumerated under Article 59 of PD No. 603, but also four
distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for
conditions prejudicial to the child's development. We stress that Section 10 refers to acts of child abuse
other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution
under Section 6, child trafficking under Section 7, attempt to commit child trafficking under Section 8,
and obscene publications and indecent shows under Section 9 (People vs. Rayon, G.R. No. 194236,
January 30, 2013).

In Bongalon vs. People, G.R. No. 169533, March 20, 2013 - Accused saw the victim and his
companions hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand
and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated
without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass
him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight
physical injuries.

In Rosaldes vs. People, G.R. No. 173988, October 08, 2014

- Although the accused, as a schoolteacher, could duly discipline
her minor student, her infliction of the physical injuries on him
was unnecessary, violent and excessive. The boy even fainted
from the violence suffered at her hands. She could not justifiably
claim that she acted only for the sake of disciplining him. Her
physical maltreatment of him was precisely prohibited by no
less than the Family Code, which has expressly banned the
infliction of corporal punishment by a school administrator,
teacher or individual engaged in child care exercising special
parental authority. Accused was convicted of child abuse under
Section 10 (a) of RA No. 7610.
The Family Code has expressly banned the infliction of corporal punishment by a school
administrator, teacher or individual engaged in child care exercising special parental authority. A
schoolteacher in employing unnecessary violence on her minor student, who even fainted from the
violence suffered at her hands, is liable for child abuse under Section 10 of RA No. 7610 (Rosaldes vs.
People, G.R. No. 173988, October 08, 2014).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).

Tenacious resistance - Among the amendments of the law

on rape introduced under RA No. 8353 is Section 266-D, which
provides “Any physical overt act manifesting resistance against
the act of rape in any degree from the offended party, or where
the offended party is so situated as to render her/him incapable
of giving valid consent, may be accepted as evidence in the
prosecution rape” (People vs. Sabadlab, G.R. No.
175924, March 14, 2012). The legislators agreed that Article
266-D is intended to soften the jurisprudence on tenacious
resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23,
2002, En banc). Failure to shout should not be taken against the
victim (People vs. Rivera, GR No. 200508, September 04, 2013;
see: People vs. Rubio, 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).

I​ ncestuous rape- In incestuous rape of a minor, actual

force or intimidation need not even be employed where the
overpowering moral influence of appellant, who is private
complainant’s father, would suffice (People vs. Samandre, G.R.
No. 181497, February 22, 2012) In rape committed by a father,
his moral ascendancy and influence over the victim substitute
for the requisite force, threat, and intimidation, and strengthen
the fear which compels the victim to conceal her dishonor
(People vs. Ortega, G.R. No. 186235, January 25, 2012; People
vs. Broca, GR No. 201447, January 09, 2013 People vs.
Candellada, G.R. No. 189293, July 10, 2013, ; People vs. Osma,
G.R. No. 187734, August 29, 2012).

Person Deprived Of Reason – The term statutory rape

should only be confined to situations where the victim of rape is
a person less than 12 years of age. If the victim of rape is a

person with mental abnormality, deficiency, or retardation, the

crime committed is simple rape committed against a person
"deprived of reason" (People vs. Dalan, G.R. No. 203086, June
11, 2014). In rape, the phrase "deprived of reason" refers to
mental abnormality, deficiency or retardation, which includes (a)
idiot (equivalent to two-year old child); (b) imbecile (seven-year
old child); (c) moron or feebleminded (twelve-year old child)
and (d) borderline intelligence. A person is guilty of rape when
he had sexual intercourse with a female who was suffering from
a "borderline mental deficiency (People vs. Butiong, G.R. No.
168932, October 19, 2011; G.R. No. 140209, December 27,
2002, People vs. Bayrante, G.R. No. 188978, June 13, 2012);
​Demented Person - The term demented refers to a person
who has dementia (schizophrenia) or insanity. On the other
hand, the phrase deprived of reason includes those suffering
from mental retardation. Accused was charged in the
Information with rape of a demented person. Evidence however
shows that the victim is not demented but mentally retarded.
Mistake in the information will not exonerate the accused he
failed to raise this as an objection (People vs. Ventura, Sr. GR.
No. 205230, March 12, 2014) or there is an allegation in the
information that his mental age is below 7 years old (People vs.
Caoile, GR No. 203041, June 05, 2013,).

Deafmute - The deprivation of reason need not be

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

30. QUALIFYING CIRCUMSTANCES - RPC punishes

the rape of a mentally disabled person regardless of the
perpetrator’s awareness of his victim’s mental condition.
However, the perpetrator’s knowledge of the victim’s mental
disability, at the time he committed the rape, qualifies the crime
(People vs. Caoile, GR No. 203041, June 05, 2013). Since
knowledge is an element of this qualifying circumstance, it must
be formally alleged in the information and duly proved by the
prosecution (People vs. Obogne, GR No. 199740, March 24,
2014). In People vs. Lascano, G.R. No. 192180, March 21,
2012 –the information in the present case merely stated that the

victim was blind; it did not specifically allege that the appellant
knew of her blindness at the time of the commission of the rape.
Hence, the crime committed is simple rape.

In qualifying circumstances of minority and relationship in

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

​ 1. RAPE THROUGH SEXUAL ASSAULT - Rape

3
through sexual intercourse, which is commonly denominated as
“organ rape” or “penile rape”, is committed by a man by having
carnal knowledge with a woman. This is not a gender free crime
since the offender must be a man while the victim must be a
woman. On the other hand, rape by sexual assault is committed
by a person by inserting his penis into another person’s mouth or
anal orifice, or any instrument or object into the genital or anal
orifice of another person. If the offender used instrument or
object in committing a crime, the crime is called “instrument or
object rape.” In rape through sexual assault, the gender of the
offender and the victim is not material. That is why this crime is
called “gender-free rape” (See: People vs. Soria, G.R. No. I
79031, November 14, 2012).

32. UNTENABLE DEFENSE

Marital consent – Husband can be held liable for marital

rape. Article 266-A of RPC uses the term “man” in defining
rape. Rape can be committed without regard to the rapist’s legal
relationship with his victim. Under Article 266-C of RPC as
amended by RA No. 8353, in case it is the legal husband who is
the offender, the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or the
penalty. RA No. 8353 has eradicated the archaic notion that
marital rape cannot exist because a husband has absolute
proprietary rights over his wife’s 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),

Pardon - For crimes of seduction, abduction, and acts of

lasciviousness, pardon and marriage extinguish criminal
liability. However, pardon should have been made prior to the

institution of the criminal actions (People vs. Dollano, Jr., GR

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

34. FRUSTRATED HOMICIDE - The elements of

frustrated homicide are: (1) the accused intended to kill his
victim, as manifested by his use of a deadly weapon in his
assault; (2) the victim sustained fatal or mortal wound/s but did
not die because of timely medical assistance; and (3) none of the
qualifying circumstance for murder under Article 248 of the
Revised Penal Code, as amended, is present. In ascertaining
whether intent to kill exists, the Court considers the presence of
the following factors: (1) the means used by the malefactors; (2)
the nature, location and number of wounds sustained by the
victim; (3) the conduct of the malefactors before, during, or
immediately after the killing of the victim; and (4) the
circumstances under which the crime was committed and the
motives of the accused (Ibañez vs. People, G.R. No. 190798,
January 27, 2016).

CRIMES AGAINST PROPERTY

35. ROBBERY - When robbery by means of violence and

intimidation is committed in the dwelling, dwelling is
aggravating because in this class of robbery, the crime may be
committed without the necessity of trespassing the sanctity of
the offended party's house (People vs. Evangelio, G.R. No.
181902, August 31, 2011). When robbery by means of violence
and intimidation is committed after an unlawful entry or
forcible entry, the crime committed is a complex crime. 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. Napolis, G.R. No.
L-28865, February 28, 1972; People vs. Disney, G.R. No. L-
41336, February 18, 1983, En Banc and Fransdilla vs. People,
GR No. 197562, April 20, 2015). When robbery with homicide
is committed after unlawful entry or forcible entry, the crime
committed is special complex crime of robbery with homicide
with the ordinary aggravating circumstance of unlawful entry or
forcible entry (People vs. Baello, G.R. No. 101314, July 01,
1993). After entry into the dwelling by means of simulation of
authority, homicide is committed by reason or on occasion of
robbery, the crime committed is robbery with homicide while
simulation of authority is absorbed (People vs. Diu, GR No.
201449, April 03, 2013).

36. COMPLEX CRIME OF ROBBERY - In Sebastian

case, the Supreme Court ruled that 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.

In People vs. Napolis, G.R. No. L-28865, February 28,

1972, the Supreme Court En Banc expressly abandoned the
Sebastian doctrine. It was held that imposing a much lighter
penalty if violence upon person is used in addition to forcible
entry in committing robbery defies logic and reason. 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.

In People vs. Disney, G.R. No. L-41336, February 18,

1983, En Banc and Fransdilla vs. People, GR No. 197562, April
20, 2015 the Supreme Court reaffirmed the Napolis doctrine.

37. ESTAFA THROUGH ISSUANCE OF BOUNCING

CHECK - 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 money or property from the offended party by
reason of the issuance of the check, whether dated or postdated.
In other words, it must be shown that the offended party to
whom the check was delivered would not have parted with his
money or property were it not for the issuance of the check by
the offender (People vs. Reyes, GR No. 157943, September 04,
2013). Issuance of bouncing check to cover pre-existing
obligation is not estafa.

To be guilty of this crime the accused must have used the

check in order to defraud the complainant. What the law
punishes is the fraud or deceit, not the mere issuance of the
worthless check. 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, GR No.
157943, September 04, 2013). But receipt of notice of dishonor
is not an element of this crime.
 ​ 8. OTHER FORMS OF SWINDLING – Other forms of
3
swindling under Article 316 (a) of RPC is committed by any
person who, knowing that the real property is encumbered, shall
dispose of the same, although such encumbrance be not
recorded. The law was taken from Article 455 of the Spanish
Penal Code. However, the words "como libre" in the Spanish
Penal Code, which means "free from encumbrance" do not
appear in the English text of RPC, nonetheless, the same are
deemed incorporated in the RPC. The gravamen of the crime is
the disposition of legally encumbered real property by the
offender under the express representation that there is no
encumbrance thereon. Hence, for one to be criminally liable for
estafa under the law, the accused must make an express
representation in the deed of conveyance that the property sold
or disposed of is free from any encumbrance (Naya vs. Abing,
G.R. No. 146770, February 27, 2003).

In other forms of swindling under Article 316, (1) and (2)

of RPC, offender perpetrates 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. In Estrellado-Mainar vs. People, G.R. No.

184320, July 29, 2015 - The accused is not liable under
paragraph 2 since he did not make an express representation in
the deed of conveyance that the property sold or disposed of is
free from any encumbrance. Neither is he liable under
paragraph 1 since he did not pretend to be the lawful owner of
property by a title issued in the name of her father. The
complainant is aware that the title is still in the name of the
father of the accused.

​39. OTHER DECEIT - In estafa under Article 315, the

false representation is committed by using fictitious name, or
falsely pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary transactions, or
by means of other similar deceits. Following the principle of
ejusdem generis, other deceit as a means to commit estafa must
be similar to pretending to possess power, imaginary transaction
etc. If the deceit is not similar to pretending to possess power or
imaginary transaction, the crime committed is other deceit under
Article 318. In Guinhawa vs. People, G.R. No. 162822 August
25, 2005 - Fraudulent representation of the seller that the van to
be sold is brand new constitutes other deceit under Article 318.
On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048,
issue of May 19, 1069, false representation that accused has a
palay by reason of which the victim parted his money in
consideration of the palay constitutes estafa under Article 315.
Unlike in the Guinhawa case, the transaction in Rubaton case is
imaginary.

​ he false pretense made by accused that Primelink was

T
authorized to sell membership shares is estafa. False pretense of
qualification to sell securities is within the contemplation of the
provision on estafa (Lopez vs. People, GR No. 199294, July 31,
2013)

40. THEFT - The only requirement for a personal property

to be the object of theft under the penal code is that it be capable
of appropriation. It need not be capable of "asportation," which
is defined as "carrying away." Jurisprudence is settled that to
"take" under the theft provision of the penal code does not
require asportation or carrying away (Medina vs. People, G.R.
No. 182648, June 17, 2015);

A tenant is entitled to the products of the land he or she

cultivates. The landowner's share in the produce depends on the

agreement between the parties. Hence, the harvesting done by

the tenant is with the landowner's consent. Petitioner harvested
the abaca, believing that he was entitled to the produce as a
legitimate tenant cultivating the land owned by private
complainant. Personal property may have been taken, but it is
with the consent of the owner (Ligtas vs. People, G.R. No.
200751, August 17, 2015).

The subsequent recovery of the stolen motorcycle will not

preclude the presence of the third element. Actual gain is
irrelevant as the important consideration is the intent to gain
or animus lucrandi. Intent to gain is an internal act presumed
from the unlawful taking of the motor vehicle which the
appellant failed to overcome with evidence to the contrary.
Verily, the mere use of the thing unlawfully taken constitutes
gain (People vs. Asamuddin, G.R. No. 213913, September 02,
2015).

Employee, who failed to return the motorcycle and money

of the company, is liable for carnapping and qualified theft
(People vs. Asamuddin, supra)
 41. THEFT THROUGH MISAPPROPRIATION -
Misappropriation of personal property in possession of the
accused may constitute estafa or theft depending upon the nature
of possession. If his possession of the property is physical or de
facto, misappropriation thereof is constitutive of theft. If the
possession is juridical or legal, misappropriation thereof is estafa
through misappropriation. But if the accused acquired not
merely possession but also ownership over the property, his
liability in connection with the property is merely civil.

​If there is a contract of agency, the possession of the agent

over the property owned by principal is juridical. Under the
Civil Code, an agent can even assert, as against his own
principal, an independent, autonomous, right to retain money or
goods received in consequence of the agency; as when the
principal fails to reimburse him for advances he has made, and
indemnify him for damages suffered without his fault (Guzman
v. Court of Appeals, 99 Phil. 703). Thus, failure of the agent to
return the money or property to the principal is estafa
(Carganillo vs. People, G.R. No. 182424, September 22, 2014;
Tria vs. People, G.R. No. 204755, September 17, 2014).

​In Velayo vs. People, G.R. No. 204025, November 26,

2014 – Accused induced to complainant to entrust to her the

funds for the taxes because she knew someone at the BIR who
could help her facilitate the remittance, and even reduce the
amounts due. She received the money for remit the same to the
BIR with full freedom and discretion. Thus, she had juridical
possession of money. The crime committed is estafa.

​ river of jeepney under boundary arrangement, who did

D
not return the vehicle to the owner-operator, is liable for
carnapping. The law prohibits operator of motor vehicle from
leasing it. In the eye of the law the driver was only an employee
of the owner rather than a lessee. For being an employee, his
possession of the jeepney is physical (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)

I​ n Roque v. People, the Court ruled that qualified theft may

be committed even when the personal property is in the lawful
possession of the accused prior to the commission of the felony.
The concept of unlawful taking in theft, robbery and carnapping
being the same, the holding in Roque v. People equally applies
[44]

to carnapping. Hence, in People v. Bustinera, appellant, who

was hired as taxi driver, was found guilty of carnapping under
R.A. No. 6539 after he failed to return the Daewoo Racer taxi
assigned to him by the cab company where he was employed
(People vs. Asamuddin, G.R. No. 213913, September 02, 2015).

​ s a rule, the possession of the employee is only physical

A
possession. Hence, misappropriation of property is considered as
theft. If the property is accessible to the employee because of his
function as such, the qualifying circumstance of abuse of
confidence can be appreciated. The following employees were
convicted of qualified theft for misappropriating the property of
their employer: (a) bank teller (People v. Locson, G.R. No. L-
35681, October 18, 1932), (b) collector (Matrido vs. People,
G.R. No. 179061, July 13, 2009; Benabaye vs. People, G.R. No.
203466, February 25, 2015) and (c) cash custodian (Chua-Burce
vs. CA, G.R. No. 109595, April 27, 2000; Balerta vs. People,
G.R. No. 205144, November 26, 2014).

​ owever, there are instances where the possession of the

H
employee is considered as juridical. 1. In Aigle vs. People, G.R.
No. 174181, June 27, 2012 - A corporate officer received the
property to be utilized in the fabrication of bending machines in

trust from the corporation and he has absolute option on how to

use them without the participation of the corporation. Upon
demand, the officer failed to account the property. Since the
corporate officer received the property in trust with absolute
option on how to use them without the participation of the
corporation, he acquired not only physical possession but also
juridical possession over the equipment. He is liable for estafa
through misappropriation. 2. In People vs. Go, G.R. No. 191015,
August 6, 2014 – The President of the Bank is holding the
bank’s fund in trust or for administration for the bank’s benefit.
His possession is juridical. Hence, misappropriating the funds by
making fictitious loan is estafa. 3. In Gamboa vs. People, G.R.
No. 188052, April 21, 2014 - Accused employed as Liaison
Officer of a pawnshop received money in trust to secure or
renew licenses and permits. His possession is juridical. Hence,
misappropriating the money is estafa.

​ 2. THEFT OF BULKY GOODS - If the bulky goods are

4
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. Unlawful taking is deemed complete from the
moment the offender gains possession of the thing, even if he
has no opportunity to dispose of the same. 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 crime is necessarily included in
the charge of frustrated theft (Canceran vs. People, G.R. No.
206442, July 01, 2015).

​Asportation - The only requirement for a personal property

to be the object of theft under the penal code is that it be capable
of appropriation. It need not be capable of "asportation," which
is defined as "carrying away." Jurisprudence is settled that to
"take" under the theft provision of the penal code does not
require asportation or carrying away (Medina vs. People, G.R.
No. 182648, June 17, 2015);

​ 3. Theft Of Intangible Property - The term "personal

4
property" in the Revised Penal Code should be interpreted in the
context of the Civil Code. Consequently, any personal property,
tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may be
appropriated under Bulk Sales Law. Thus, the business of
providing telecommunication and the telephone service is a
personal property (Laurel vs. Abrogar, G.R. No. 155076,
January 13, 2009).

​ he word "take" in the RPC includes controlling the

T
destination of the property stolen to deprive the owner of the
property, such as the use of a meter tampering, use of a device to
fraudulently obtain gas, and the use of a jumper to divert
electricity. Appropriation of forces of nature which are brought
under control by science such as electrical energy can be
achieved by tampering with any apparatus used for generating or
measuring such forces of nature, wrongfully redirecting such
forces of nature from such apparatus, or using any device to
fraudulently obtain such forces of nature (Laurel vs. Abrogar).
 ​ INDER OF LOST PROPERTY -
F ​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).

44. QUALIFIED THEFT - The elements of the crime of

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

Abuse of confidence - A project manager, who took

construction materials from the project site, is liable for
qualified theft since the stolen properties are accessible to him
(Zapanta vs. People, G.R. No. 170863, March 20, 2013). If the
accused as an employee had no physical access to, or material
possession of, the stolen goods owned by his employer, the
qualifying circumstance of abuse of confidence cannot be
appreciated (Viray vs. People, GR No. 205180, November 11,
2013). Breaking the main door because accused was denied
access to complainant’s house means the latter has no
confidence on the former. Qualified theft with abuse of
confidence is not committed (Viray vs. People, GR No. 205180,
November 11, 2013). The crime committed is robbery by using
force upon thing.

Identity of the offended party - 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). If the subject matter of a crime against
property was money, identity of the offended party in the
information is indispensable for the proper identification of the
offense charged. Since money is generic, it can only be
identified connecting it to the offended party. Thus, the
erroneous designation of the offended party is fatal to the
prosecution of the crime. If the subject matter of a crime against
property is specific, identity of the offended party in the
information is not indispensable for the proper identification of
the offense charged. Since property is specific, it can be
identified even without connecting it to the offended party
(Senador vs. People, GR No. 201620, March 06, 2013).

Claim of ownership - Properties allegedly stolen are

subject to estate proceeding. The fact that these properties were
taken under claim of ownership negates the element of intent to
gain. One who takes the property openly and avowedly under
claim of title offered in good faith is not guilty of robbery even
though the claim of ownership is untenable. “Actus non facit
reum, nisi mens sit rea. (Sy vs. Gutierrez, GR No. 171579,
November 14, 2012).

45. UNINHABITED HOUSE - The establishment

allegedly robbed was a store not used as a dwelling. Hence, the
crime committed is robbery in a private building (Marquez vs.

People, G.R. No. 181138, December 3, 2012).

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

CRIMES AGAINST CHASTITY

​ 7. ACTS OF LASCIVIOUNESS AND RAPE

4
THROUGH SEXUAL ASSAULT – Prior to RA No. 8353,
rape through sexual assault was considered as acts of
lasciviousness. However, upon the passage of RA No. 8353,
acts, which were as acts of lasciviousness before, are now
treated as rape through sexual assault. However, the concept of
rape through sexual assault has not acquired some of the
characteristic of acts of lasciviousness.

I​ f 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).

If the crime charged is rape, but the crime proven is acts of

lasciviousness, the accused will be convicted of the latter
because of the variance rule. Acts of lasciviousness is
necessarily included in the charge of rape. If the crime charged
is rape through sexual intercourse, but the crime proven is rape
through sexual assault, the accused cannot be convicted of the
latter. The variance rule is not applicable since rape through
sexual assault is not necessarily included in the charge of rape
through sexual intercourse. The elements of these two crimes are
materially and substantially different. In such case, the accused
will be convicted of acts of lasciviousness, 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).

48. ACTS OF LASCIVIOUSNESS AND CONSENTED

ACTS OF LASCIVIOUSNESS - Acts of Lasciviousness under
Article 336 of the Revised Penal Code is committed against a
person of either sex. On the other hand, consented acts of
lasciviousness under Article 339 of the same Code is committed
against woman. Acts of lasciviousness is committed under the
any of the circumstances of committing the old form of rape,
and that is, (1) using force or intimidation; or (2) when the
offended party is deprived of reason or otherwise unconscious;
or (3) when the offended party is under 12 years of age. While
consented acts of lasciviousness under Article 339 of the same
Code is committed under the any of the circumstances of
committing qualified seduction or simple seduction (e.g. acts of
lasciviousness committed if committed against: (1) a woman by
ascendant or brother; (2) a virgin over twelve years and under
eighteen years of age by any person in public authority, priest,
home-servant, domestic, guardian, teacher, or any person who,
in any capacity, shall be entrusted with the education or custody
of the woman; or (3) against a woman who is single or a widow
of good reputation, over twelve but under eighteen years of age
committed by means of deceit (See: Dimakuta vs. People, G.R.
No. 206513, October 20, 2015).

CRIMES AGAINST CIVIL STATUS

49. BIGAMY - The elements of bigamy are: (1) the offender has been legally married; (2) the first
marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not
been judicially declared presumptively dead; (3) he contracts a subsequent marriage; (4) the subsequent
marriage would have been valid had it not been for the existence of the first (Marbella-Bobis v. Bobis,
G.R. No. 138509, 31 July 2000; Vitangcol vs. People, G.R. No. 207406, January 13, 2016); (5) fraudulent
intention (People vs. Manuel, G.R. No. 165842, November 29, 2005).

1. Validity of the first marriage - To avoid criminal

liability for bigamy, the first marriage must be declared null and
void before contracting the second marriage. This requirement is
found in Article 40 of the Family Code, which 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).

Contracting second marriage without previous declaration

of nullity of the first marriage consummates the crime of
bigamy. 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 the Revised Penal
Code such as death, pardon etc. Thus, after the consummation
of the crime of bigamy upon celebration of the second bigamous
marriage, the criminal liability shall not be extinguished by
subsequent declaration of nullity of the first marriage(Mercado
vs. Tan, G.R. No. 137110, August 1, 2000) even though
obtained before the filing of the complaint for bigamy (People
vs. Odtuhan, GR No. 191566, July 17, 2013); or the second
marriage (Tenebro vs. The Honorable Court of Appeals, supra);
or first marriage and second marriage (Jarillo vs. People, GR
No. 164435, September 29, 2009).

Subsequent declaration of nullity of the first marriage-

Contracting second marriage during the subsistence of first
marriage consummates the crime of bigamy. Criminal liability
will not be extinguished even though after the consummation of
the crime or celebration of the second marriage, the first
marriage has been declared null and avoid because of
psychological incapacity (Mercado vs. Tan, supra) or lack of
license and affidavit of cohabitation(Lasanas vs. People,G.R.
No. 159031, June 23, 2014). Contracting a second marriage
constitutes the crime of bigamy unless a judicial declaration of
the nullity of the first marriage has been secured beforehand.
Because of Article 40 of the Family Code, a declaration of the
absolute nullity of a marriage is now explicitly required either as
a cause of action or a ground for defense (Lasanas vs.
People,supra).

Even if the first marriage was contracted prior to the

Family Code, this is not a defense. Article 40, which is a rule of
procedure, should be applied retroactively. The retroactive
application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected. The reason is
that as a general rule, no vested right may attach to, nor arise
from, procedural laws (Jarillo vs. People, GR No. 164435, June
29, 2010).

Exception: 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).

2. Validity of the second marriage – For the accused to be

convicted of bigamy, the second or subsequent marriage must
have all the essential requisites for validity (Santiago vs. People,
G.R. No. 200233, July 15, 2015). In sum, the second marriage
would be valid were it not for the subsistence of the first
marriage (People v. Dumpo, 62 Phil. 247). The felony is
consummated on the celebration of the second marriage or
subsequent marriage.

a. Subsequent declaration of nullity of the second

marriage - Contracting second marriage during the subsistence
of first marriage consummates the crime of bigamy. Criminal
liability will not be extinguished even though after the
consummation of the crime or celebration of the second
marriage, such second marriage has been declared null and
avoid because of psychological incapacity. To hold otherwise
would render the State’s 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
the consequences of contracting multiple marriages (Tenebro vs.
The Honorable Court of Appeals, supra; Walter vs. People, GR
No. 183805, July 03, 2013). Note: Article 40 of the Family Code
is not applicable in this case because this provision contemplates
a situation where first marriage, and not the second marriage, is
null and void.

b. Second marriage is void for lack of marriage license -

If the second marriage is void due to lack of marriage license,
the accused may or may not use the nullity thereof as a defense.

The accused misrepresented that they were exempted from

the license requirement based on their fabricated claim that they
had already cohabited as husband and wife for at least five years
prior their marriage. 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, The State’s penal laws on bigamy should not
be rendered nugatory by allowing the accused to deliberately
ensure that the second marriage be flawed in some manner, and
to thus escape the consequences of contracting multiple
marriages (Santiago vs. People, supra).
The second marriage was celebrated one day before the issuance of the marriage license. Accused
can use the voidness of the second marriage as a defense in bigamy. In this case, 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, supra; People v. De Lara, 3 No. 12583-
R, 14 February 1955, 51 O.G. 4079) but marriage contracted against the provisions of the law under
Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955).

Accomplice in bigamy - The crime of bigamy does not

necessary entail the joint liability of two persons who marry
each other while the previous marriage of one of them is valid
and subsisting. In the crime of bigamy, both the first and second
spouses may be the offended parties depending on the
circumstances, as when the second spouse married the accused
without being aware of his previous marriage. Only if the
second spouse had knowledge of the previous undissolved
marriage of the accused could she be included in the information
as a co-accused (Santiago vs. People, G.R. No. 200233, July 15,
2015).

The punishment of the second spouse as a principal to the

crime is wrong. The second spouse, if indicted in the crime of
bigamy, is liable only as an accomplice. A person, whether man
or woman, who knowingly consents or agrees to be married to
another already bound in lawful wedlock is guilty as an
accomplice in the crime of bigamy (Santiago vs. People, supra).

Three marriages - 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. 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. He is not liable for bigamy
involving the third marriage on the basis of the second marriage
since the latter is null and void for being a bigamous marriage.

50. ILLEGAL MARRIAGE - A priest, who performed a

marriage ceremony despite knowledge that the couple had no
marriage license, is liable for illegal marriage. The non-filing of
a criminal complaint against the couple does not negate criminal
liability of the priest. Article 352 does not make this an element
of the crime. The law sets the minimum requirements
constituting a marriage ceremony: first, there should be the
personal appearance of the contracting parties before a
solemnizing officer; and second, their declaration in the
presence of not less than two witnesses that they take each other
as husband and wife. For purposes of determining if a marriage
ceremony has been conducted, a marriage certificate is not
included in the requirements (Ronulo vs. People, G.R. No.
182438, July 02, 2014).

CRIMES AGAINST HONOR

​ 1. MEANS TO COMMIT DEFAMATION - Under

5
Article 355 of the Revised Penal Code, a libel is committed by
means of writing, printing, lithography, engraving, radio,
phonograph, painting, theatrical exhibition, cinematographic
exhibition, or “any similar means.” 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).
​ he place where libelous article was accessed by the
T
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).
​
Whether the offense committed is serious or slight oral
defamation, depends not only upon the sense and grammatical
meaning of the utterances but also upon the special
circumstances of the case, like the social standing or the
advanced age of the offended party. "The gravity depends upon:
(1) the expressions used; (2) the personal relations of the
accused and the offended party; and (3) the special
circumstances of the case, the antecedents or relationship
between the offended party and the offender, which may tend to
prove the intention of the offender at the time. In particular, it is
a rule that uttering defamatory words in the heat of anger, with
some provocation on the part of the offended party constitutes
only a light felony (De Leon vs. People, G.R. No. 212623,
January 11, 2016).

There are cases where the Court considered the

circumstances of the concerned parties and held that the
defamation was grave serious in nature.

In U.S. v. Tolosa, where a woman of violent temper hurled

offensive and scurrilous epithets including words imputing
unchastity against a respectable married lady and tending to
injure the character of her young daughters, the Court ruled that
the crime committed was grave slander. In Balite v. People, the
accused was found guilty of grave oral defamation as the
scurrilous words he imputed to the offended party constituted
the crime of estafa.

In some cases, the Court has declared that the defamatory

utterances were not grave on the basis of the peculiar situations
obtaining.

In the case of People v. Arcand, a priest called the offended

party a gangster in the middle of the sermon. The Court affirmed
the conviction of the accused for slight slander as there was no
imputation of a crime, a vice or immorality. In Pader v.
People, the Court ruled that the crime committed was only slight
oral defamation as it considered the expression, "putang ina
mo," as expression to convey anger or displeasure. Such
utterance was found not seriously insulting considering that he
was drunk when he uttered those words and his anger was
instigated by what the private complainant did when the former's
father died. Also in Jamilano v. Court of Appeals, where calling
someone "yabang" (boastful or arrogant) was found not
defamatory, the complainant's subsequent recourse to the law on
oral defamation was not sustained by the Court.

Considering the factual backdrop of this case, the Court is

convinced that the crime committed by De Leon was only slight
oral defamation for the following reasons:

First, as to the relationship of the parties, they were

obviously acquainted with each other as they were former
jogging buddies. Prior to the purported gun-pointing incident,
there was no reason for De Leon to harbor ill feelings towards
SPO3 Leonardo.

Second, as to the timing of the utterance, this was made

during the first hearing on the administrative case, shortly after
the alleged gun-pointing incident. The gap between the gun-
pointing incident and the first hearing was relatively short, a
span of time within which the wounded feelings could not have

been healed. The utterance made by De Leon was but a mere

product of emotional outburst, kept inside his system and
unleashed during their encounter.

Third, such words taken as a whole were not uttered with

evident intent to strike deep into the character of SPO3
Leonardo as the animosity between the parties should have been
considered. It was because of the purported gun-pointing
incident that De Leon hurled those words. There was no
intention to ridicule or humiliate SPO3 Leonardo because De
Leon's utterance could simply be construed as his expression of
dismay towards his actions as his friend and member of the
community (De Leon vs. People, G.R. No. 212623, January 11,
2016).
 CRIMINAL NEGLIGENCE

​ 2. To make a doctor liable for reckless imprudence

5
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).

In People vs. Dumayag, G.R. No. 172778, 26 November

2012 - Section 37 of R.A. No. 4136 mandates all motorists to
drive and operate vehicles on the right side of the road or
highway. When overtaking another, it should be made only if the
highway is clearly visible and is free from oncoming vehicle.
Overtaking while approaching a curve in the highway, where the
driver’s view is obstructed, is not allowed. Corollarily, drivers of
automobiles, when overtaking another vehicle, are charged with
a high degree of care and diligence to avoid collision. The
obligation rests upon him to see to it that vehicles coming from
the opposite direction are not taken unaware by his presence on
the side of the road upon which they have the right to pass.

53. JUVENILE JUSTICE AND WELFARE SYSTEM –

An accused is a child in conflict with the law as along as he is
under 18 years of age at the time of the commission of the
offense. Reaching the age of majority at any stage of the case
will not deprive him of his entitlements under the law as a child
in conflict with the law. Thus, the exempting circumstance of
minority is still appreciable even if the accused is already an

adult at the time of the rendition of judgment. However, there is

an exception to this rule. Upon reaching the age of 21 years, he
is not anymore entitled to the benefit of a suspended sentence.

The rights and privileges of a child in conflict with the law

are as follows:

​ . Exemption of criminal liability - If the child is 15 years

1
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 12 years of age up to 15 years of age,

he is exempt from criminal liability but he can be considered as
a neglected child and 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.

I​ n 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).

​ . Privilege mitigating circumstance – If the child is

2
above 15 years of age but below 18 years of age, minority is
either exempting or privileged mitigating. If the child acted
without discernment, the circumstance of minority is exempting.
If the child acted with discernment, the circumstance of minority
is a privileged mitigating. 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).

​ nder Section 98 of RA No. 9165, the provisions in

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

​ . Suspension of sentence of child in conflict with the

5
law - The suspension of sentence of minor is now found in
Section 38 of RA 9344, otherwise known as the Juvenile Justice
and Welfare Law. Hence, Article 80 of the Revised Penal Code
and relevant provisions in PD 603 (Youth and Welfare Code) on
suspension of sentence of minor are deemed repealed.

a. Promulgation of judgment - Once the child in conflict

with the law is found guilty of the offense charged, the court,
instead of pronouncing judgment of conviction, shall place him
under suspended sentence, without need of application (1984
Bar Exam). But the court shall determine and ascertain any civil
liability which may have resulted from the offense committed
(Section 38 of RA 9344). In other words, the suspension of
sentence does not extend to civil aspect of the case. If the child
in conflict with the law is found innocent or exempt for criminal
liability the pronouncement of judgment of acquittal shall not be
suspended.

In suspension of sentence of minor, what is being

suspended is the pronouncement of sentence or promulgation of
judgment of conviction. In probation, what is being suspended is
the service of sentence. In parole, what is being suspended is the
service of the unserved portion of the sentence. The convict is
only entitled to apply for parole after the serving the minimum
penalty under the indeterminate sentence law.

b. Application, not required - Under the old rule,

application for suspension of sentence is required. But under
Section 38 of RA 9344, the court shall place the child in conflict
with the law under a suspended sentence without need of
application.

c. Reaching the age of majority -Under the old rule, a

child in conflict with the law is not entitled to a suspended
sentence upon reaching 18 years of age. However, under Section
38 of RA No. 9344, the suspension of sentence shall still be
applied even if the child in conflict with the law is already 18
years of age or more at the time of pronouncement People vs.
Ancajas, G.R. No. 199270, October 21, 2015).

While Section 38 of RA 9344 provides suspension of

sentence can still be applied even if the child is already 18 years
of age or more at the time of the pronouncement, Section 40
limits the suspension of sentence until the child reaches the age
of 21. Hence, child in conflict with the law, who reached 21
years of age, cannot avail of suspension of sentence (1973,
1977, 2003, 2009, and 2013 Bar Exams; People vs. Arpon, G.R.
No. 183563, December 14, 2011, Padua v. People, G.R. No.
168546, July 23, 2008, People vs. Salcedo, GR No. 186523,
June 22, 2011; People vs. Gambao, GR No. 172707, October 01,
2013; People vs. Ancajas, G.R. No. 199270, October 21, 2015).

d. No disqualification - Under the old rule, the child in

conflict with the law is disqualified from the benefit of
suspended sentence if he had been sentenced to death, life
imprisonment, reclusion Perpetua (1995 Bar Exam). However,
under RA No. 9344, Section 38 makes no distinction as to the
nature of offense by the child. Thus, the court should not
distinguish between a minor, who is guilty of capital offense or
lesser offense. The Senate debate discloses that the suspension is
applicable to heinous crime (People vs. Sarcia, G.R. No.
169641, September 10, 2009; People vs. Jacinto, G.R. No.
182239, March 16, 2011; People vs. Ancajas, G.R. No. 199270,
October 21, 2015). Even a recidivist minor is entitled a
suspended sentence.

​ . Probation – If the accused is an adult, application for

6
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 is sentenced to suffer a

penalty (maximum indeterminate penalty) of more than 6 years
is not qualified to apply for probation (e.g. one who is sentenced
to suffer 2 years of prision correccional as minimum to 6 years
and 1 day of prision mayor as maximum is not entitled to apply
for probation). However, under Section 70 of RA No. 9165
(Dangerous Drugs Law), a first time minor offender can apply
for probation for the crime of illegal possession or use of
dangerous drug even if the penalty is higher than 6 years of
imprisonment (2014 Bar Exam). But Section 70 of RA 9165 is
only applicable if the minor is being charged with possession or
use of dangerous drugs. If the charge is selling dangerous drugs,
the applicable rule is Section 24 of RA No. 9165, which
disqualifies drug traffickers and pushers for applying for
probations. 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).

7. Agricultural camp or other training facilities - The

child in conflict with the law may, after conviction and upon
order of the court, be made to serve his sentence, in lieu of
confinement in a regular penal institution, in an agricultural
camp and other training facilities in accordance with Section 51
of RA No. 9344 (People vs. Mantalba, G.R. No. 186227, July
20, 2011; People vs. Salcedo, GR No. 186523, June 22, 2011;
People vs. Arpon, G.R. No. 183563, December 14, 2011; People
vs. Ancajas, G.R. No. 199270, October 21, 2015).

8. Full credit of preventive imprisonment –A convict is

entitled to a full or 4/5 credit of his preventive imprisonment
(Article 29 of the Revised Penal Code). 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).

54. CHILD ABUSE - Twelve years old and above - If the

child is 12 years old and above, and the acts of the accused
constitute sexual abuse (or child prostitution) under RA No.
7610 and rape or acts of lasciviousness, the latter shall be
prosecuted as follows:

If the acts committed against a child, who is 12 years old

and above, constitute sexual abuse and rape or acts of
lasciviousness, the perpetrator cannot be charged with both
crimes for the same act because his right against double
jeopardy will be prejudiced. Both crimes are of the same nature
since the essence of both is having sex without consent. Consent
of the child is not recognized by law. Likewise, rape cannot be
complexed with sexual abuse. Under Section 48 of RPC, a
felony cannot be complexed with an offense penalized by a
special law. In such case, he shall be prosecuted either for sexual
abuse or rape through sexual intercourse (People v. Abay, G.R.
No. 177752, February 24, 2009; People vs. Pangilinan, G.R. No.
183090, Nov. 14, 2011, People v. Dahilig, G.R. No. 187083,
June 13, 2011, People v. Matias, G.R. No. 186469, June 13,
2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130,
June 19, 2013) depending upon which of the laws prescribes a
higher penalty.

If the acts committed against a child, who is 12 years old

and above, constitute sexual abuse and rape through sexual
intercourse or rape through sexual assault with homicide, the
perpetrator shall be prosecuted for rape because the Revised
Penal Code prescribes a higher penalty.

If the acts committed against a child, who is 12 years old

and above, constitute sexual abuse and rape through sexual
assault or acts of lasciviousness, the perpetrator shall be
prosecuted for sexual abuse because RA No. 7610 prescribes a
higher penalty.

In Dimakuta vs. People, G.R. No. 206513, October 20,

2015 – If the victim of the lascivious acts or conduct is over 12
years of age and under eighteen (18) years of age, the accused
shall be liable for consented acts of lasciviousness under Article
339 of the Revised Penal Code or acts of lasciviousness under
Article 336. However, in case the acts of lasciviousness is
covered by lascivious conduct under Section 5 (b) RA No. 7610
and it is done through coercion or influence, which establishes
absence or lack of consent, then Art. 336 of the Code is no
longer applicable. Accused shall be held liable for sexual abuse.
In instances where the lascivious conduct is covered by Section
5 (b) of RA No. 7610 (on sexual abuse), where the penalty
is reclusion temporal medium, and the act is likewise covered by
(rape through) sexual assault under Article 266-A, paragraph 2
of the RPC, which is punishable by prision mayor, the offender

should be liable for violation of Section 5(b), Article III of R.A.

No. 7610, where the law provides for the higher penalty
of reclusion temporal medium, if the offended party is a child
victim

Under twelve years old – If the child is under 12 years

old, and the acts of the accused constitute sexual abuse (or child
prostitution) under RA No. 7610 and rape or acts of
lasciviousness, the latter shall be prosecuted penalized as
follows:
a. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and
rape through sexual intercourse, the perpetrator shall not be prosecuted for sexual abuse under RA No.
7610. He shall be prosecuted and penalized for statutory rape under Revised Penal Code (People vs.
Pangilinan, GR No. 183090, November 14, 2011). Under Section 5 of RA No. 7610, when the child
exploited in prostitution or subject to sexual abuse is under twelve years of age, the perpetrators shall be
prosecuted for rape under the Revised Penal Code.
 b. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and
acts of lasciviousness, the perpetrator shall be prosecuted for acts of lasciviousness under the Revised
Penal Code but penalized under RA No. 7610, which has prescribed the penalty of reclusion temporal in
its medium period. Under Section 5 of RA No. 7610, when the child exploited in prostitution or subject to
sexual abuse is under twelve years of age, the perpetrators shall be prosecuted under the Revised Penal
Code on lascivious conduct: Provided, That the penalty for it shall be reclusion temporal in its medium
period

Before the perpetrator can be convicted of acts of lasciviousness with the penalty under RA No.
7610, the requisites for acts of lasciviousness must be met in addition to the requisites for sexual abuse
(Navarrete vs. People, G.R. No. 147913, January 31, 2007; Amployo v. People, G.R. No. 157718, 26
April 2005).

c. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and
simple rape through sexual assault, the letters of Section 5 of RA No. 7610 require that the perpetrator
shall be prosecuted and penalized under Revised Penal Code. However, this rule is unfair. If the victim is
under 12 year old, the penalty for acts of lasciviousness in relation to RA No. 7610 is reclusion temporal
in its medium period; while that for rape through sexual assault is only prision mayor. In sum, the penalty
for acts of lasciviousness is higher than that for rape by sexual assault although the criminal degree of the
former is lesser than that of the latter. To prevent unfairness, the Supreme Court in People vs. Chingh,
G.R. No. 178323, March 16, 2011 imposed the penalty of reclusion temporal in its medium period under
RA No. 7610 for simple rape through sexual assault committed against a 10 year old child. The Court
stated: “To be sure, it was not the intention of the framers of RA No. 8353 (on rape through sexual
assault), to have disallowed the applicability of RA No. 7610 to sexual abuses committed to children.
Despite the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be applied when the
victims are children.”

d. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and
qualified rape by sexual assault, the letters of Section 5 of RA No. 7610 require that the perpetrator shall
be prosecuted and penalized under Revised Penal Code. This rule is not unfair since the Revised Penal
Code has prescribed grave penalty for it, and that is, reclusion temporal. Hence, the letter of the law shall
be applied to its full extent. In People vs. Bonaagua, G.R. No. 188897, June 6, 2011, since the crime
committed (against an 8-year-old child) is rape through sexual assault with qualifying circumstance of
minority and relationship, the rationale of unfairness to the child victim that Chingh case wanted to
correct is absent because RPC as amended by RA No. 8353 already prescribes the penalty of reclusion
temporal for this crime. Hence, there is no more need to apply the penalty prescribed by RA No. 7610 for
sexual abuse. The penalty under RPC should be imposed.

55. ESTAFA AND ILLEGAL RECRUITMENT – It is

settled that a person may be charged and convicted separately of
illegal recruitment under RA 8042, in relation to the Labor
Code, and estafa (People vs. Arnaiz, G.R. No. 205153,
September 09, 2015). The accused for deceitfully recruiting
without license 6 complainants to work abroad is liable for one
count of large scale illegal recruitment and 6 counts of estafa
through false pretense (People vs. Solina, G.R. No. 196784,
January 13, 2016).

56. ESTAFA THROUGH MISAPPROPRIATION - The

essence of estafa under Article 315, par. 1(b) is the appropriation
or conversion of money or property received to the prejudice of
the owner. The words "convert" and "misappropriate" connote
an act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different from
that agreed upon. To misappropriate for one's own use includes
not only conversion to one's personal advantage, but also every
attempt to dispose of the property of another without right
(Tabaniag vs. People, GR No. 165411, June 18, 2009).

Refusal to remit rentals for properties owned by

corporation to corporate officers, who are not validly elected,
does not constitutes estafa through misappropriation (People vs.
Arambulo, G.R. No. 186597, June 17, 2015).

Demand not necessary – However, demand to return or to

make accounting is not specified in Article 315 of the Revised
Penal Code as an element of estafa. The importance of demand
in estafa has something to do with evidence. Failure to account
upon demand for funds or property held in trust without offering
any satisfactory explanation for the inability to account is
circumstantial evidence of misappropriation (Magtira vs. People,
G.R. No. 170964, March 7, 2012).In a prosecution for estafa
through misappropriation, demand is not necessary where there
is evidence of misappropriation or conversion(People vs.
Arambulo,G.R. No. 186597, June 17, 2015).

57. BP BLG. 22 and ESTAFA - There is no estafa if the

check was issued to cover pre-existing obligation or replace a
previously issued check. In People vs. Chua, G.R. No. 130632,
September 28, 1999 - Ineluctably, the replacement checks were
issued in payment of an obligation long contracted and incurred.
It cannot therefore be said that accused committed fraudulent
acts in the issuance and the indorsement of the replacement
checks. In short, the replacement checks were by no means the
device used by accused to induce complainant to lend her money
without which the transaction would not have been
consummated.

However, accused is liable under Batas Pambansa Blg. 22

for issuing four replacement checks. The law makes the mere act
of issuing a worthless check punishable as a special offense. The
gravamen of the offense under this law is the act of issuing a
worthless check or a check that is dishonored upon its
presentment for payment. The law has made the mere act of
issuing a bum check a malum prohibitum, an act proscribed by
legislature for being deemed pernicious and inimical to public
welfare. It is undisputed that the four replacement checks in
question were issued by accused and that these were all
dishonored due to insufficiency of funds.
58. BP BLG. 22 - If there is no proof as to when the written notice of dishonor was received by
the drawer, then the presumption or prima facie evidence as provided in Section 2 of B.P. Blg. 22 cannot
arise, since there would simply be no way of reckoning the crucial 5-day period (Danao v. Court of
Appeals). In Chua vs. People, G.R. No. 196853, July 13, 2015, the notice of dishonor, while bearing the
signature of accused, does not indicate any date as to his receipt thereof. Hence, there is no way to
ascertain when the five-day period under the law would start and end. It cannot simply presume that the
date of the demand letter was likewise the date of receipt thereof. There is simply no such presumption
provided in our rules on evidence. Accused was acquitted.
​
I​ t is well settled that violations of BP 22 cases are
categorized as transitory or continuing crimes, meaning that
some acts material and essential thereto and requisite in their
consummation occur in one municipality or territory, while
some occur in another. The check was issued in Pampanga,
deposited in Makati bank and dishonored by drawee bank in
Pampanga. The court of the place where the check was
deposited or presented for encashment can be vested with
jurisdiction to try cases involving violations of BP 22. The Metc
of Makati has jurisdiction of the case (Morillo vs. People, G.R.
No. 198270, December 09, 2015). The complainant may also
file the case in Pampanga, the place of issuance.

Demand letter was given with the security guard with the
instruction to hand it to accused. But there is no showing that
the letter ever reached accused. Counsel sent a demand letter to
accused by registered mail which was returned with the notation
"N/S Party Out 12/12/05" and that accused did not claim it
despite three notices to her. Since there is insufficient proof that
accused actually received the notice of dishonor, the
presumption that she knew of the insufficiency of her funds
cannot arise. Accused was acquitted. However, he is still civilly
liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).

An acquittal based on lack of proof beyond reasonable

doubt by reason of failure to establish receipt of notice of
dishonor does not preclude the award of civil damages (San
Mateo vs. People, G.R. No. 200090, March 6, 2013).
Exerting effort - Exerting efforts to reach an amicable settlement with her creditor after the
checks which she issued were dishonored by the drawee bank is a circumstantial evidence of receipt of
notice of dishonor. Accused would not have entered into the alleged arrangements if she had not received
a notice of dishonor from her creditor, and had no knowledge of the insufficiency of her funds with the
bank and the dishonor of her checks (Campos vs. People. G.R. No. 187401, September 17, 2014).

No right to expect - Under Section 114(d) of the Negotiable Instruments Law, notice of dishonor
is not required to be given to the drawer in either of the following cases where the drawer has no right to
expect or require that the drawee or acceptor will honor the check. Since petitioner's bank account was
already closed even before the issuance of the subject check, he had no right to expect or require the
drawee bank to honor his check. By virtue of the aforequoted provision of law, petitioner is not entitled to
be given a notice of dishonor (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.

Payment - Payment of check before the filing of information is a defense. The spirit of B.P. Big
22, which is the protection of the credibility and stability of the banking system, would not be served by
penalizing people who have evidently 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. 1. Payment after receiving subpoena from
the office of city prosecutor (Lim vs. People, G.R. No. 190834, November 26, 2014) 2. Payment through
notarial foreclosure two years before the filling of cases (Griffith vs. Hon. CA, G.R. No. 129764, March
12, 2002)3. Payment six (6) months before the filing of case (Cruz vs. Cruz, G.R. No. 154128, February
8, 2007)

Payment of check after the filing of information is not a defense. Since there is no showing of
intention to mitigate or totally alleviate the ill effects of his issuance of the unfunded check, then there is
no equitable and compelling reason to preclude the prosecution of accused. In such a case, the letter of the
law should be applied to its full extent (Lim vs. People, supra).

In estafa, damage and deceit are the essential elements of the offense, and the check is merely the
accused's tool in committing fraud. In such a case, paying the value of the dishonored check will not free
the accused from criminal liability. It will merely satisfy the civil liability of the crime but not the
criminal liability (Lim vs. People, supra). Note: The essence of estafa is to punish fraud and not to protect
the integrity of the check.

Suspension of payment - Suspension of payment order issued by SEC before the check was
presented for payment is a defense in violation of BP Blg. 22. Considering that there was a lawful Order
from the SEC, the contract is deemed suspended. When a contract is suspended, it temporarily ceases to
be operative; and it again becomes operative when a condition occurs - or a situation arises - warranting
the termination of the suspension of the contract. When a contract is subject to a suspensive condition, its
birth takes place or its effectivity commences only if and when the event that constitutes the condition
happens or is fulfilled. Thus, at the time complainant presented the check for encashment, it had no right
to do so, as there was yet no obligation due from accused. Thus, accused is not liable for violation of BP
Blg. 22 (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 violation of BP Blg. 22. Since there is no suspension of payment when the notice of
dishonor was received, the drawer was not precluded from making good the check during that three-
month gap when he received the letter and when the SEC issued the order (Tiong Rosario vs. Co, G.R.
No. 133608, August 26, 2008).

​ 59. RA NO. 3019 – In Giangan vs. People, G.R. No.

169385, August 26, 2015 -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.

Private individual - Only public officer can be held

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

Conspiracy of silence or inaction - ​As a rule, the

principle of conspiracy as a mode of committing a crime or for
purpose of applying the collective responsibility rule is only
applicable to intentional felony. The concept of conspiracy, the
elements of which are agreement and decision to commit a
crime, are not consistent with culpable felony. Persons cannot
definitely agree and decide to commit a culpable crime.
However, there is an exception, and that, the doctrine of
conspiracy of silence or in action. In Jaca vs. People, G.R. No.
166967, January 28, 2013 - A paymaster obtained cash advances
despite the fact that she has previous unliquidated cash
advances. The City Treasurer certified that the cash advances are
necessary and lawful. The City Accountant certified that the
expenditures are supported by documents and previous cash
advances are liquidated and accounted for. The City
Administrator approved the voucher and countersigned the
check. The paymaster is liable for violation of Section 3 (e) of
RA No. 3019 committed through gross inexcusable negligence.

The City Treasurer, City Accountant and City administrator 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.

Undue delay - There was really no sufficient justification

tendered by the State for the long delay of more than five years
in bringing the charges against the respondents before the proper
court. On the charge of robbery, the preliminary investigation
would not require more than five years to ascertain the relevant
factual and legal matters. Because of the inordinate delay in
resolving the criminal complaint by the Ombudsman against
respondent, the cases against respondent were dismissed (People
vs. Hon. Sandiganbayan, and Perez, G.R. No. 188165,
December 11, 2013).
Under Section 3 (a), 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 (See: Baviera
vs. Zoleta, G.R. No. 169098, Oct. 12, 2006). Hence, Grace Poe is not committing this crime since she is
not inducing Secretary De Lima to commit an offense or violate rules in connection with the criminal
complaint against INC officers by means of consideration, reward, payment or remuneration.

Section 3 (b) is limited only to contracts or transactions involving monetary consideration where
the public officer has the authority to intervene under the law. Preliminary investigation is not a contract
or transaction is not a contract or transaction within the contemplated of Section 3 (b). Hence, requesting
or receiving money in connection with a preliminary investigation is not a violation of this provision
(Soriano, Jr. vs. Sandiganbayan, G.R. No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice
Secretary Perez, G.R. No. 188165, December 11, 2013).

In Consigna vs. People, G.R. no. 175750, April 2, 2014 –

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

Section 3 (3) of RA No. 3019 is not applicable exclusively

to public officers charged with the duty of granting licenses or
permits or other concessions. It may apply to other public
officers (Mejorada vs. Sandiganbayan, G.R. No. L-51065-72,
June 30, 1987; Stilgrove vs. Sabas, A.M. No. P-06-2257, March
28, 2008; Consigna vs. People, G.R. No. 175750, April 2, 2014).

Second element - The accused must have acted with

manifest partiality, evident bad faith or gross inexcusable
negligence Section 3(e) of RA 3019 may be committed either
by dolo, as when the accused acted with evident bad faith or
manifest partiality, or by culpa, as when the accused committed
gross inexcusable negligence (Plameras vs. People, GR No.
187268, September 04, 2013).
 Arias principle - The property bought by the City is
overpriced. Accused was charged with violation of Section 3 (e)
of RA No. 3019 for causing damage to the government through
manifest partiality and evident bad faiths. The only evidence
presented by the prosecution is his on the voucher. He was
acquitted. Accused cannot be convicted on grounds than the
mere signature or approval appearing on a voucher. Heads of
offices can rely to a reasonable extent on their subordinates on
preparation of bids, purchase of supplies, or negotiations (Arias
v. Sandiganbayan, G.R. Nos. 81563 & 82512, 19 December
1989).

However, the principle in the Arias case where is not

applicable where circumstances other than signature of the
voucher shows evident bad faith, manifest partiality or gross
inexcusable negligence such as: (1) Where the accused has
foreknowledge of existing anomaly - e.g. mayor signed the
inspection report and the disbursement voucher despite the fact
that he had foreknowledge that the materials delivered by
Guadines have already been confiscated by the DENR (Escara
vs. People, G.R. No. 164921, July 8, 2005); (2) Where there is
deviation from ordinary procedure – e.g. mayor issued and
encashed municipal checks despite the facts that the
disbursement vouchers were in the name of Kelly Lumber but
the checks were payable to the accused and not to Kelly Lumber
(Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August
16, 2005); and (3) Where accused approved the voucher without
indication of the retention money required by law, and he even
inspected the construction site of PAL Boat, in which he should
have noticed the financial weakness of the contractor and the
defective works (Rivera vs. People, G.R. No. 156577, December

03, 2014).

Arias principle is not applicable if the public officer acting

in his capacity as head of office has not relied on his
subordinates but on officers of equal rank such as heads of the
Office of the City Treasurer and, the Office of the City
Accountant (Jaca vs. People, G.R. No. 166967, January 28,
2013).

An erroneous interpretation of a provision of law regarding

the entitlement of a government employee who was wrongfylly
removed to RATA, absent any showing of some dishonest or
wrongful purpose, does not constitute and does not necessarily
amount to bad faith (Ysidoro vs. Hon. Leonardo-De Castro,
G.R. No. 171513, February 06, 2012).

Third element - His action caused undue injury to any

party, including the government or gave any private party
unwarranted benefits, advantage or preference in the discharge
of his functions. There are two (2) ways by which a public
official violates Section 3(e) of R.A. No. 3019 in the
performance of his functions, namely: (1) by causing undue
injury to any party, including the Government; or (2) by giving
any private party any unwarranted benefit, advantage or
preference. The accused may be charged under either mode or
under both. The disjunctive term “or” connotes that either act
qualifies as a violation of Section 3(e) of R.A. No. 3019. In ]

other words, the presence of one would suffice for conviction.

"To be found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another, in the
exercise of his official, administrative and judicial
functions." The element of damage is not required for violation
of Section 3 (e) under the second mode (Braza vs. the Hon.
Sandiganbayan, G.R. No. 195032, February 20, 2013; Rivera vs.
People, G.R. No. 156577, December 03, 2014).

First mode - The concept of "undue injury," in the context

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

measuring compensatory or actual damage (M.A. Jimenez Inc.

vs. The Hon. Ombudsman, G.R. No. 155307, June 06, 2011).

Second mode - In the first mode of committing the crime,

the undue injury is caused to any party including the
government. In the second mode, the unwarranted benefits,
advantage or preference is given to private party. Giving
unwarranted benefits, advantage or preference to the
government or public official is not constitutive of the crime
under Section 3 (e). The term "private party" may be used to
refer to persons other than those holding public office (Bautista
vs. Sandiganbayan, G.R. No. 136082, May 12, 2000) or public
officer acting in a private capacity to protect his personal interest
(Ambil vs. Sandiganbayan, G.R. No. 175457, July 06, 2011).
Giving unwarranted benefit to the mayor transferring him from
the provincial jail and detained him at a residence is a violation
of Section 3 (e). Such privilege was accorded to the mayor not
in his official capacity, but as a detainee charged with murder.
Thus, for purposes of applying the provisions of Section 3(e),
the mayor was a private party (Ambil vs. Sandiganbayan, supra).

In Disini vs. Sandiganbayan, G.R. No. 169823-24 and

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

The allegations in the information charging the violation of

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

the Government in connection with the PNPPP; (3) President

Marcos, the public officer with whom Disini had family or close
personal relations, intervened to secure and obtain for Burns &
Roe the engineering and architectural contract, and for
Westinghouse the construction of the PNPPP.
The rule directing full disclosure of wealth in the SALN is a means of preventing said evil and is
aimed particularly at minimizing if not altogether curtailing the opportunities for official corruption and
maintaining a standard of honesty in the public service. By the SALN, the public is able to monitor
movement in the fortune of a public official; it serves as a valid check and balance mechanism to verify
undisclosed properties and wealth (Gupilan-Aguilar vs. Office of the Umbudsman, G.R. No. 197307,
February 26, 2014).

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.

60. 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.

Unlawful activity also includes violation of the Electronic

Commerce Law, the Revised Forestry Code, Fisheries Code,
Wildlife Resources Conservation and Protection Act, the
National Caves and Cave Resources Management Protection
Act, the Intellectual Property Code; the Securities Regulation
Code; and felonies or offenses of a similar nature that are
punishable under the penal laws of other countries (Section 3 of
RA No. 9160 as amended by RA No. 10365).

Any person may be charged with and convicted of both the

offense of money laundering and the above-enumerated
unlawful activity. The prosecution of money laundering shall
proceed independently of any proceeding relating to the
unlawful activity (Section 6 of RA No. 9160 as amended by RA
No. 10365).

61. LOOSE FIREARM - When loose firearm is used in

committing a crime with a graver penalty, the accused shall be
prosecuted for the graver crime, but the court shall apply the
penalty in its maximum period (Section 29, RA No. 10591). Use
of loose firearm is a special aggravating circumstance (People
vs. Salibad, G.R. No. 210616, November 25, 2015) similar to
quasi-recidivism because its presence will require the
application of the penalty in its maximum period regardless of
the presence of mitigating circumstance (People vs. Salahuddin,
G.R. No. 206291, January 18, 2016).

For example, if a loose firearm was used in committing

homicide, the accused shall be held liable for homicide and the
court shall apply reclusion temporal prescribed for it in its
maximum period. This special aggravating circumstance can be
appreciated even though the loose firearm was not presented as
evidence (People vs. Salibad, supra) as long as there is proof
that accused used firearm in committing a crime (slugs were
recovered from the dead body of the victim) and he has no
license to possess a firearm (People vs. Salahuddin, supra).

62. DANGEROUS DRUGS

Use of dangerous drugs - Where the presence of

dangerous drugs as basis for possession is only in the form of
residue and there is a positive confirmatory test result, the
accused should be charged with use of dangerous drugs rather
than possession of dangerous drugs. This would be in keeping
with the intent of the law to file charges of use of dangerous
drugs in order 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).
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).

​ ttempted Sale - “A”, poseur buyer, asked “X” if he has

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

​Delivery - Is the absence of marked money as evidence

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

Lack Of Coordination With Pdea - Silence of the law as

to the consequences of the failure on the part of the law

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

Confirmatory Test - In Ambre vs. People, G.R. No.

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

Photography And Inventory –Under Section 21 of RA

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

Under Section 21 of RA No. 9165, the apprehending team

having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused, his
representative or counsel, media and DOJ, and any elected
public official. Non-compliance with the requirements of

Section 21 of R.A. No. 9165 will not necessarily render the

items seized or confiscated in a buy-bust operation
inadmissible. Strict compliance with the letter of Section 21 is
not required if there is a clear showing that the integrity and the
evidentiary value of the seized items have been preserved
(David vs. People, Gr No. 181861, October 17, 2011, ; Marquez
vs. People, G.R. No. 197207, March 13, 2013; People vs.
Morate, GR No. 201156, January 29, 2014; People vs. Ladip,
GR No. 196146, March 12, 2014; People vs. Bis, GR No.
191360, March 10, 2014).
 Chain Of Custody – As a method of authenticating
evidence, the chain of custody rule requires that the admission
of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims
it to be. It would include testimony about every link in the chain,
from the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness’
possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain.
These witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of the item
and no opportunity for someone not in the chain to have
possession of the same (People vs. Constantino, Jr. GR No.
199689, March 12, 2014).

Thus, the following links must be established in the chain

of custody in a buy-bust situation: first, the seizure and marking,
if practicable, of the illegal drug recovered from the accused by
the 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)

Paraphernalia With Traces Of Shabu – In People vs.

Matinez, G.R. No. 191366, December 13, 2010 - This Court
notes the practice of law enforcers of filing charges under Sec.
11 in cases where the presence of dangerous drugs as basis for
possession is only and solely in the form of residue, being
subsumed under the last paragraph of Sec. 11. Although not

incorrect, it would be more in keeping with the intent of the law

to file charges under Sec. 15 instead in order to rehabilitate first
time offenders of drug use, provided that there is a positive
confirmatory test result as required under Sec. 15. The minimum
penalty under the last paragraph of Sec. 11 for the possession of
residue is imprisonment of twelve years and one day, while the
penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center.
To file charges under Sec. 11 on the basis of residue alone would
frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance
at life.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls
on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges
when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test
required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a
chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should
only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the
possession of the accused as provided for in Sec. 15.

Importation Of Dangerous Drugs - In People vs. Chan

Liu, G.R. No. 189272, January 21, 2015, accused were caught
by police authorities on board a speedboat carrying shabu. They
were charged with importation of dangerous drugs. However,
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.

63. HAZING - In Villareal vs. People, G.R. No. 151258,

February 1, 2012, the accused was liable for reckless
imprudence resulting in homicide involving the death of Lenny
Villa during hazing rite. This is not anymore controlling. The
crime committed if a neophyte died during hazing rite is hazing
punishable by RA No. 8049.

Prior to RA No. 8049, good faith is a defense in homicide

where the victim is killed during hazing. The consent of the
victim and lack of intent to kill of the accused will negate dolo,
which is an important element of homicide. Hence, the crime
committed only reckless imprudence resulting in homicide
(Villareal vs. People, supra). Having in mind the principle
of mala in se adhered to under the RPC, where good faith is a
defense, the Congress did not simply enact an amendment
thereto. Instead, it created a special law on hazing, founded upon
the principle of mala prohibita where good faith is not a
defense. The deliberation of the Senate shows that what is
important is not the intention to kill the neophyte during the
hazing but the result of the act of hazing. Recognizing
the malum prohibitum characteristic of hazing, the law provides
that any person charged with the said crime shall not be entitled
to the mitigating circumstance that there was no intention to
commit so grave a wrong. Also, the framers of the law intended
that the consent of the victim to be sodomized or injured shall
not be a defense in hazing. The very act of inflicting physical
pain or psychological suffering is, by itself, a punishable act.
Sodomy or death of the victim will only aggravate the offense
(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).

​ nder Section 4 of RA 8049, the officers and members of

U
the fraternity, sorority or organization who actually participated
in the infliction of physical harm upon recruit, neophyte or
applicant on occasion of hazing shall be liable as principals for
the crime of hazing. Hazing is an initiation rite or practice as a
prerequisite for admission into membership in a fraternity,
sorority or organization or a requirement for employment in a
corporation by placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations.

​ he law, however, did not limit the definition of these

T
groups to those formed within academic colleges and
universities. Organization includes – but is not limited to –
groups, teams, fraternities, sororities, citizen army training
corps, educational institutions, clubs, societies, cooperatives,
companies, partnerships, corporations, the PNP, and the AFP.
The Philippine Merchant Marine Academy is included in the
term organization within the meaning of the law (People vs.
Bayabos). 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).

​ .A. No. 8049 qualifies that the physical, mental and

R
psychological testing and training procedure and practices to
determine and enhance the physical, mental and psychological
fitness of prospective regular members of the AFP and the PNP,
as approved by the Secretary of National Defense and the
National Police Commission, duly recommended by the Chief of
Staff of the AFP and the Director General of the PNP, shall not
be considered as hazing (Dungo vs. People, supra).
 ​ nd not all forms of initiation rites are prohibited by the
A
law. Section 2 thereof provides that initiation rites of fraternities,
sororities or organizations shall be allowed provided that the
following requisites are met: (1) That the fraternity, sorority or
organization has a prior written notice to the school authorities
or head of organization; (2) The said written notice must be
secured at least seven (7) days before the conduct of such
initiation; (3) That the written notice shall indicate: (a) The
period of the initiation activities, which shall not exceed three
(3) days; (b) The names of those to be subjected to such
activities; and (c) An undertaking that no physical violence be
employed by anybody during such initiation rites (Dungo vs.
People, supra).

​Section 3 of R.A. No. 8049 imposes an obligation to the

head of the school or organization or their representatives that
they must assign at least two (2) representatives, as the case may
be, to be present during these valid initiations. The duty of such
representative is to see to it that no physical harm of any kind
shall be inflicted upon a recruit, neophyte or applicant (Dungo
vs. People, supra).

​ oticeably, the law does not provide a penalty or sanction

N
to fraternities, sororities or organizations that fail to comply with
the notice requirements of Section 2. Also, the school and
organization administrators do not have a clear liability for non-
compliance with Section 3 (Dungo vs. People, supra).

​ he first class of principals would be the actual participants

T
in the hazing. If the person subjected to hazing or other forms of
initiation rites suffers any physical injury or dies as a result
thereof, the officers and members of the fraternity, sorority or
organization who actually participated in the infliction of
physical harm shall be liable as principals. Interestingly, the

presence of any person during the hazing is prima facie evidence

of actual participation, unless he prevented the commission of
the acts punishable herein.

​ A No. 8049 presents a novel provision that introduces a

R
disputable presumption of actual participation; and which
modifies the concept of conspiracy. Section 4, paragraph 6
thereof provides that the presence of any person during the
hazing is prima facie evidence of participation as principal,
unless he prevented the commission of the punishable acts. This
provision is unique because a disputable presumption arises
from the mere presence of the offender during the hazing, which
can be rebutted by proving that the accused took steps to prevent
the commission of the hazing.

​ enerally, mere presence at the scene of the crime does not

G
in itself amount to conspiracy. Exceptionally, under R.A. No.
8049, the participation of the offenders in the criminal
conspiracy can be proven by the prima facie evidence due to
their presence during the hazing, unless they prevented the
commission of the acts therein.
​This rule on prima facie evidence does not shatter the
presumptive innocence the accused enjoys because,
before prima facie evidence arises, certain facts have still to be
proved; the trial court cannot depend alone on such evidence,
because precisely, it is merely prima facie. It must still satisfy
that the accused is guilty beyond reasonable doubt of the offense
charged. Neither can it rely on the weak defense the latter may
adduce."

​ he second class of principals would be the officers, former

T
officers, or alumni of the organization, group, fraternity or
sorority who actually planned the hazing. Although these
planners were not present when the acts constituting hazing
were committed, they shall still be liable as principals. The
provision took in consideration the non-resident members of the
organization, such as their former officers or alumni.

​ he third class of principals would be officers or members

T
of an organization group, fraternity or sorority who knowingly
cooperated in carrying out the hazing by inducing the victim to
be present thereat. These officers or members are penalized, not
because of their direct participation in the infliction of harm, but
due to their indispensable cooperation in the crime by inducing
the victim to attend the hazing.

​ he accused claim that the information avers a criminal

T
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).

​ he next class of principals would be the fraternity or

T
sorority's adviser who was present when the acts constituting
hazing were committed, and failed to take action to prevent
them from occurring. The liability of the adviser arises, not only
from his mere presence in the hazing, but also his failure to
prevent the same.

​ he last class of principals would be the parents of the

T
officers or members of the fraternity, group, or organization. The
hazing must be held in the home of one of the officers or
members. The parents must have actual knowledge of the hazing
conducted in their homes and failed to take any action to avoid
the same from occurring.

​ he law also provides for accomplices in the crime of

T
hazing. The school authorities, including faculty members, who
consented to the hazing or who have actual knowledge thereof,
but failed to take any action to prevent the same from occurring
shall be punished as accomplices.

​ ikewise, the owner of the place where the hazing was

L
conducted can also be an accomplice to the crime. The owner of
the place shall be liable when he has actual knowledge of the
hazing conducted therein and he failed to take any steps to stop
the same (Dungo vs. People, supra)

​ uriously, although hazing has been defined as consisting

C
of those activities involving physical or psychological suffering
or injury, the penalties for hazing only covered the infliction of
physical harm. At best, the only psychological injury recognized
would be causing insanity to the victim. Conversely, even if the

victim only sustained physical injuries which did not

incapacitate him, there is still a prescribed penalty (Dungo vs.
People, supra).

​64. PLUNDER - The elements of plunder are:

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

or in connivance with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other
persons; (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, Pork-
barrel Queen can be held liable for plunder on the basis of
conspiracy.

(2) That he amassed, accumulated or acquired ill-gotten

wealth through a combination or series of the following overt or
criminal acts:

(a) through misappropriation, conversion, misuse, or

malversation of public funds or raids on the public
treasury; (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 Senator’s PDAP is not bogus belongs to the
appropriate agency of the government, the Senator is still
liable since malversation can be committed through culpa.

(b) by receiving, directly or indirectly, any

commission, gift, share, percentage, kickback or any other
form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by
reason of the office or position of the public officer;
(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).

(c) 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);

(d) by obtaining, receiving or accepting directly or

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

(e) by establishing agricultural, industrial or

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

(f) by taking advantage of official position, authority,

relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage and
prejudice of the 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).

17. To be held liable for plunder, ill-gotten wealth must be

amassed, accumulated or acquired through a combination or
series of the overt or criminal acts. There is no plunder if only
one act is proven, even if the ill-gotten wealth acquired thereby
amounts to or exceeds the figure fixed by the law for the
offense (now P50,000,000.00). The overt or criminal acts need
not be joined or separated in space or time, since the law does
not make such a qualification. It is enough that the prosecution
proves that a public officer, by himself or in connivance with
others, amasses wealth amounting to at least P50 million by
committing two or more overt or criminal acts (Jose “Jinggoy”
Estrada vs. Sandiganbayan, G.R. No. 148965. February 26,
2002).

(3) That the aggregate amount or total value of the ill-

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

I​ f a Senator, his assistant and private individuals conspires

in acquiring ille-gotten wealth by misappropriating the pork
barrel amounting to P172 million of the former, the total amount
of ill-gotten wealth acquired by the conspirators including the
private individuals shall be considered for purpose of
determining if plunder has been committed (Enrile vs. People,
G.R. No. 213455, August 11, 2015).

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.

65. VIOLENCE AGAINST WOMEN - The elements of

psychological violence against woman under Section 5 (i) of RA
No. 9262 are: (1) The offended party is a woman and/or her
child or children; (2) The woman is either the wife or former
wife of the offender, or is a woman with whom the offender has
or had a sexual or dating relationship, or is a woman with whom
such offender has a common child. As for the woman's child or
children, they may be legitimate or illegitimate, or living within
or without the family abode; (3) The offender causes on the
woman and/or child mental or emotional anguish; and (4) The
anguish is caused through acts of public ridicule or humiliation,
repeated verbal and emotional abuse, denial of financial support
or custody of minor children or access to the children or similar
such acts or omissions (Dinamling vs. People, G.R. No. 199522,
June 22, 2015).

Psychological violence is the means employed by the

perpetrator, while mental or emotional anguish is the effect
caused to or the damage sustained by the offended party. To
establish psychological violence as an element of the crime, it is
necessary to show proof of commission of any of the acts
enumerated in Section 5(i) or similar such acts. And to establish
mental or emotional anguish, it is necessary to present the
testimony of the victim as such experiences are personal to this
party (Dinamling vs. People, supra).

Neither the physical injuries suffered by the victim nor the

actual physical violence done by the perpetrator are necessary to
prove the essential elements of the crime as defined in Section
5(i) of RA No. 9262. The only exception is, as in the case at bar,
when the physical violence done by the accused is alleged to
have caused the mental and emotional suffering; in which case,
such acts of physical violence must be proven. Accused’s acts of
publicly punching, kicking and stripping victim of her pants and
underwear, although obvious acts of physical violence, are also
instances of psychological violence since it was alleged and
proven that they resulted in her public ridicule and humiliation
and mental or emotional distress (Dinamling vs. People, supra).

The fact that the victim is pregnant is an aggravating

circumstance under Section 6 of RA No. 9262 (Dinamling vs.

People, supra).

​ 6. VAGRANCY - Before Article 202 of RPC punished

6
vagrancy and prostitution. But Article 202 of RPC as amended
by RA No. 10158 merely penalizes prostitution. In sum, RA No.
10158 has decriminalized vagrancy by omitting portions of
Article 202 involving crime vagrancy. A reading of the Senate
deliberation pertaining to the passage of law decriminalizing
vagrancy shows that they considered vagrants as victims of
poverty and that the law on vagrancy serves to oppress the very
people that the government sought to protect.

I​ n view of the new policy of the State decriminalizing

vagrancy, which is embodied in RA No. 10158, ordinance,
which punishes vagrancy, should be declared as contrary to law,
and hence, invalid. Settled is the rule that what the national
legislature expressly allows by law, a local legislature may not
disallow by ordinance or resolution (Lina vs. Pana, G.R. No.
129093, August 30, 2001). The spring cannot rise higher than its
source.

​ A No. 10158 shall be given retroactive effect. Under

R
Section 2 and 3 thereof, all pending cases for vagrancy shall be
dismissed and all persons serving sentence for vagrancy shall be
immediately released. Since RA No. 10158 expressly provides
retroactive application to the law without distinction, case will
be dismissed even though the accused is a habitual delinquent.

​ . Under Article 351 of RPC, a woman in contracting

2
marriage within 301 days from death of husband, or dissolution
or annulment of marriage is liable for the crime of premature
marriage. However, RA No. 10655 decriminalizes premature
marriage by repealing Article 351. Premature marriage has been
decriminalized because Article 351 discriminates women since
this provision is not applicable to men. Moreover, Article 351
sought to prevent a possible confusion as to whether the father
of the child born within the prohibited period is the first husband
or the second. This preventive measure is not anymore necessary
since paternity and filiation could now be easily determined
through modern technology.

​ 7. WIRE TAPPING LAW -

6 ​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 driver’s 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(Anti-
Wire Tapping Law). 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.

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