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Q.001. What is meant by: (a) Criminal law? (b) Crime?

Ans. (a) Criminal law is that branch or division of law, which defines crimes, treats of their nature
and provides for their pun¬ishment. (12Cyc.129) It is that branch of public substantive law, which
defines offenses and prescribes their penalties. (It is substantive because it defines the state’s right
to inflict punishment and the liability of the offenders. It is a public law because it deals with the
relation of individuals with the state.

(b) Crime is an act committed or omitted in violation of a public law forbidding or commanding it.
(Criminal Law)


Q.003. What are the three cardinal features or main characteristics of Philippine Criminal
Law? or State the characteristics of criminal law and explain each

Ans. The three cardinal characteristics of criminal law are: generality, Territoriality; and
Irretrospectivity. Thus,

(1) Generality- That criminal law is binding upon all persons who reside or sojourn in the
Philippines, irrespective of age, sex, color, creed) personal circumstances.

(2) Territoriality- that the law is applicable to all crimes committed within the limits of the
Philippine territory, which includes its atmosphere, interior waters and maritime zone.

(3) Irretrospectivity or prospectivity- that laws do not have retroac¬tive effect or acts or
omissions can be subject to penal laws after the effectivity of the law., except if it favors the
offender or the law provides otherwise

Q.004. Discuss concisely the cardinal features of princi¬ples of criminal law. Give an
exception to each principle and explain the same

Ans. The cardinal principles are; generality, territoriality and prospectivity (irrestrospectivity).
Serving as exceptions are:

(1) Excepted under the law of generality are persons enjoying diplomatic/criminal immunity
under the International law (e.g., heads of state, ambassadors, ministers, plenipotentiary, charges d’
affairs and attaches are exempt from criminal prosecution; however, honorary consults, not
included (Schneckenburger v. Moran, 63 Phil. 250) treaty stipulations, law of preferential application
like the Constitution (i.e., Members of Congress not liable for libel or slander with any speech in
Congress ore congressional committee) (Sec. 11, Art. VI, 1987 Constitution) or other laws like
reciprocal immunity granted to domestic servants of accredited ambassadors (i.e., Sec. 7 Rep. Act.
No. 75). Or when certain persons are subjected to military law. (Art. 2, CA 408, Articles of War)
(2) Excepted under territoriality characteristics are the following cases provided by Art. 2,
Revised Penal Code; offense committed on board Philippines ships of airships in international
water/air space or committed in a Philippine embassies abroad.

(3) Excepted under prospectivity are these cases: retroactive effect may be given when
favorable to the accused who is not a habitual delinquent (Art. 22, Revised Penal Code; Tavera v.
Valdez, 1 Phil. 468; People v. Narvaez, 121 SCRA 389) or when the laws so provides unless it would
be tantamount. To ex post facto law.(Sec. 22,Article III, 1987 Constitution)

Q.005. (a) What are the different schools of thoughts or theories in Criminal Law and describe each
briefly (b) To what theory does our rev. Penal Code belong?

Ans. There are two important theories in criminal law, namely: Classical theory; and positivist
theory. Explaining each.

(1) Classical theory-simply means that the basis of criminal liabilities is human free will and the
purpose of penalty is retribution, which must be proportional to the gravity of the offense. Its
characteristics are:

(a) The basis is human free will and the purpose of penalty is retribution;

(b) The man is essentially a moral creature with an absolute free will to choose between good
and evil, thereby placing more stress upon the effect or result of the felonious act than upon the
man, the criminal himself:

(c) There is scant regard to human element.(Reyes, The Revised Penal Code, and 1993 ed. pp.

(d) Crime is juridical entity and penalty is an evil and a means of juridical tutelage.(Guevarra
Penal Sciences and Philippine Criminal Law, 1974 ed. p. 6;

(2) Positivist theory-which considers man as a social being and his acts are attributable
not just to his will but to other forces of society. Its characteristics are:

(a) That man is subdued occasionally by a strange and morbid phenomena which constrains him
to do wrong, inspite of or contrary to his violation;

(b) That crime is essentially a social and natural phenomenon, and as such it cannot be treated
and checked by the application of abstract principles of law and jurisprudence nor by the imposition
of a punishment, fixed and determined a priori; but rather through the enforcement of individual
measures in each particular case after a thorough personal and individual investigation conducted by
a competent body of psychiatrists and social scientists. (Basic Principles, Rationale, pp. 2 and 3, by
the Code Commission on Code of Crimes; Reyes supra, p. 22;)
(c) Basis of criminal responsibility of the criminal is his dreadfulness or dangerous state.
(Guevarra, Penal Sciences and Philippine Criminal Law, 1374 ed. p. 6; Gregorio, Fundamentals of
Criminal Law Review p. 12)

(d) We follow the classical school of thought although some) visions of eminently positivist in
tendencies like punishment impossible crimes, juvenile circumstances are incorporated in our Code.
This trend is termed "Eclectic or Mixed theory or philosophy."


(a) The above theories may be associated with philosophies underlying our criminal law system-
such as: classical or juristic philosophy (i.e., purpose of penalty retribution- "an eye for an eye, a
tooth for a tooth); positivist or realistic philoso¬phy i.e., purpose of penalty is reformation and
therefore considered as a lenient philosophy); and Electric or mixed philosophy, a combination of
two philosophies-¬classical and positivist.

(b) Another philosophy ort theory Is the Utilitarian or protective theory-that is the primary
purpose of punishment under criminal law is the protection of society from actual and potential
wrongdoers. The Mala prohibita principle is consistent with this theory.

Q.006. Enumerate some basic maxims in criminal law. Explain.

Ans. They are: principle or doctrine of pro reo; doctrine of nullum crimen nulla poena sine lege;
and principle of actus non facit reum, nisi mena sit rea Thus,

(1) Doctrine of pro reo-Whenever a penal law is to be construed or applied and the law admits
two interpretations: one lenient to the offender; and one strict to the offender, that interpretation
which is lenient or favorable to the offender shall be applied.

(2) Nullum crimen, nulla poena sine lege-There is no crime when there is no law punishing the
same. Civil law countries adhere to this doctrine; however, common law countries do not adopt this

(3) Actus non facit reum, nisi mena sit rea-the act cannot be criminal when the mind is not
criminal. This is true felony characterized by dolo, not by culpa. Thus, the maxim is not absolute
because it is not applied to cula felonies or those that result in negligence.

Q.007. Who has the power to define and punish an act as a crime?

Ans. Generally, the State under its police power, through its legislative Department (e.g.,
Congress of the Philippines and its precedessors) is vested with this power.

Serving as exception to the general rule is when the Executive Department (i.e., President of the
Philippines) may exercise that power to define and punish crime under these situations:
(1) The Chief Executive during Martial Law years exercised this power by authority of
proclamation and constitution. (Proc. No. 1081; Amendment No. 6 of the 1973 Constitution as

(2) The Chief Executive under the Freedom Constitution; and

(3) The Chief Executive under the 1987 Constitution exercising the emergency power to carry
out declared national policy.(Sec. 23, par. 2, Art. 6, 1987 Constitution)

Q.008. What are the limitations upon the power of Con¬gress to enact penal laws?

Ans. The limitations are:

(1) No ex post facto shall be enacted.

(2) No bill of attainder shall be passed.

(3) No person shall be held to answer for a criminal offense without due process of law (Sec.
14(1), Art, III, 1987 Constitution)

(4) No felony shall be punishable by any penalty not prescribed by law prior to its
commission.(Art. 21, 22, Revised Penal Code;)

Q.009. Are there common law crimes in our jurisdic¬tion?

Ans. There are none. The rule is: nullum crimen, nulla poena sine lege, that is, no crime if there is
no law punishing it.26 Common law crimes are adopted in USA and United Kingdom.

B. Penal Code: Its Coverage,

Enforcement and Its Applicability

Q.010. What is the principal governing law on crimes?

Ans. The Revised Penal Code (Act No. 3815 as amended) was enacted and approved' by the
Senate and House of Represent¬atives of the Philippine Legislature, on December 8, 1930 and effect
on January 1, 1932 (Art. 1 Revised Penal Code)[see BAR Q. 1 (a), 1963].

Q.011. What are the sources of criminal law?

Ans. They are:

(1) The Revised Penal Code (Act No. 3815 as amended);

(2) Act Providing for Enforcement of Conditions of Pardon (Act No. 1524, August 9, 1906);

(3) Penal Acts passed by the Philippine Legislature.

(4) Penal Acts passed by the National Assembly (Espionage Law (Com. Act No. 616, June 14,

(5) Penal Acts passed by Congress of the Philippines of Third Republic.

(6) Decreed penal acts (presidential decrees, executive orders) issu¬ed by President Marcos
during the Martial Law years

(7) Penal Acts passed by Batasan Pambansa.

(8) Penal Acts passed by Congress of the Philippines of the fifth Republic.33

Q.012. The Revised Penal Code consists of how many books?

Ans. The code consists of two (2) books namely:

(1) Book One-which consists of two parts:

(a) Basic principles affecting criminal liability (Arts. 1-20);

(b) The provisions on penalties including criminal and liability (Arts. 21-113); and

(2) Book Two-which defines felonies with their corresponding penalties.

Q.013. What are the parts of the Revised Penal Code?

Ans. The parts are:

(1) Principles affecting criminal liability (Arts. 1-20);

(2) Penalties including liability (civil or criminal)- see Arts. 21-113 Revised Penal Code; and

(3) Specific penalties and their corresponding penalties (Arts. 114-366, Revised Penal Code)

Q.014. Briefly trace or discuss the development of the criminal law in the Philippines.

Ans. The development in chronological order:

First, The penal provisions of the Maragtas Code, reputedly written and compiled by Datu Sumakwel
in 1250.34

Second, the penal provisions of the Code of Kalantiao.

Third, The Spanish Penal Code of 1870 which was extended to the Philippines by virtue of Royal
Order of December 17, 1886 which took feet on July 14, 1887. It was enforced up to December 31,
1931 (US v, Tamparong, 31 Phil. 321)

Fourth, before the effectivity of the Revised Penal Code, there was an the Correctional (correccional)
Code of Rafael del Pan aiming to correct, paraphrased and alter the Spanish Criminal Code (Codigo
Penal) of 1870) of easy understanding by Filipinos. Most provisions of this correctional code were
adopted by the Revised Penal Code.

Fifth, the Revised Penal Code (Act No. 3815 as amended). (The Revised Penal Code was prepared by
the Code Committee created by Administrative Order)

Sixth, the penal projects to revised the penal system such as:

(a) The Code of Crimes prepared by the Code Commission created during Pres. Roxas
administration but was not enacted by Congress. This was again to as Cabinet Bill No. 2 to the
Batasan but was not enacted.

(b) Code of Crimes prepared personally by Judge Guillermo Guevara but was not submitted to
Batasan because it was more a moral code.

(c) Draft of Penal Code of the Philippines by the UP Law Center and submitted by the
Assemblyman Estelito Mendoza as substitute for Cabinet Bill No.2.(One of the members of the code
committee chosen by UP Law Center was Prof. Ortega)

Q.015. Relative to penal laws, how are the to be construed or interpreted?

Ans. The basic rules for the construction of penal laws are:

(1) Penal laws are strictly construed against the government and liberally in favor of the
accused.(Us v. Abad Santos, 36 Phil. 243; People v. Yu Hai, 992 Phil. 728; People v. Terrado, 125 SCRA
648 (1983) This should be the rule when the criminal law is ambiguous, the above rule is not
applicable.(People v. Gatchalian, 104 Phil. 664) So the underlying philosophy of the Provision Law is
one of liberality towards the accused(Santos To v. Pano, L-551130 January 17, 1983;120 SCRA 8;) a
chance a to reform, rehabilitate without stigma of prison records and save government from
expenditures of food and maintenance and decongest our jails.(Del Rosario v. Rosero v.126 SCRA

(2) In the interpretation or construction of the Revised Penal code the Spanish text is
controlling because the enacting body, the Philippine Legislature approved the Spanish text. (People
v. Manava, 58 Phil. 665, 668)

Q.016. How are repeal of criminal laws, classified?

Ans. Repeal of criminal laws may partake of these classes:

(1) Repeal is absolute and total-it ahs the effect of decriminalizing it-i.e., RA No. 7363
decriminalized subversion;

(2) Repeal is partial or relative-that is the repealed law modifies or sets some conditions either
increasing the penalty or reducing it.

(3) Repeal is express or implied-depending upon the manner the repeal is being done-expressly
provided or impliedly provided as when two laws are inconsistent.

(4) Self-repealing law- when t he law has its own expiry period or automatic termination – i.e.,
Sec. 18, RA No. 650 which expired last June 30, 1953.(People v. Jacinto, CA 54 O. G. 7587)

Q.017. State the basic rules on the effect of the repeal of penal laws.

Ans. The rules are as follows:

First, if the repeal of penal laws is total or absolute, the

consequences are:

(a) Cases pending in court involving the repealed law must be dismissed for two reasons:
presumption of innocence and the rule of nullum crimen, nulla poena sine lege (no crime when
there is no law punishing the same): that is, offense ceases to be criminal.(People v. Tamayo, 61

(b) Cases already decided or those convicted already serving sentence by final judgment, he
may be released unless he is a habitual delinquent (Art. 22, Revised Penal Code) or there is proviso
that the repealed law shall not be applicable to those serving their sentence. If not released he
should not escape but instead file petition for habeas corpus.

Second, If the repeal is partial or relative, the rules are:

(a) If the repeal makes the penalty lighter in the new law, the new law shall be applied, being
favorable whether to pending cases or to those serving sentence, except when the offender is a
habitual delinquent or when the law is not made applicable to pending action or existing causes of

(b) If the new imposes a heavier penalty, the law in force at the time of the commission shall be

(c) When the new law and the old law penalize the same offense, the offender can be tried
under the old law. (US v. Cuna 12 Phil 241;)

Third, if the repel is expressed or implied, the rules are:

(a) When the repealing law fails to penalize the offense under the old law, the accused cannot
be convicted under the new law.(People v. Sindiog and Pastor (77Phil. 1000)
(b) A person erroneously accused and convicted under a repealed law may be punished under
the repealing statute which punishes the same act, provided the accused had an opportunity to
defend himself against the charge brought against him. (People v. Baesa Ca, 56O. G. 5466)

(c) Implied repeal is not favorable because it needs a competent court to declare an implied
repeal. When the earlier law does not expressly provide that it is repealing an earlier law, what has
taken is an implied repealed.

Note: If penal law is impliedly repealed, the subsequent repeal of the

repealing law will revive the original law. But if the repeal is express, the repeal of the repealing law
will not revive the original law.

Q.018. A, a prisoners learns that he is already overstaying in jail because his jail guard who happens
to be law student advised him that there is no more legal ground for his continued imprisonment,
and the jail guard to him that he can go. Is there a crime committed.

Ans. If A get out of jail, he commits a crime known as evasion of sentence. On the part of the
guard he can be held liable infidelity in the custody of the criminal.

Q.019. What is the scope of the application of the Revised Penal Code?

Ans. The provisions of the Revised Penal Code and Article 2 hereof in particular, speaks of 2
scopes of its application, namely:

(1) Intraterritorial- refers to the enforcement of its provision within the Philippine archipelago,
including its atmosphere, its interior waters and maritime zones; and

(2) Extraterritorial- enforcement of the Revised Penal Code outside the Philippine Territory.

Q.020. Under International Law what are the theories underlying aerial (atmosphere)

Ans. They are: Free zone theory, Delative theory and Absolute theory.

Q.021. What are the cases the provisions of the Revised Penal Code are made applicable even if the
felony is commit¬ted outside the Philippines?

Ans. In these cases when the offender:

(1) Commit an offense while on a Philippine ship or airship.

(2) Forge or counterfeit any coin or currency note of the Philippines or obligations and
securities issued by the Government;

(3) Be liable for acts connected with the introduction into the Philip¬pines of the obligations
and securities (e.g., forged and counterfeited coins, notes, obligations);

(4) Is an officer or employee and should commit an offense in the exercise of his functions; and

(5) Commit any of the crimes against national security and the law of nations.

Q.022 When is a merchant vessel considered a Philippine ship.

Ans. When said vessel is registered with the Philippine laws e.g., licensed and registered by the
Marina (Maritime Authority) and flying the Philippine flag. It is governed by Philippine laws unless
inside the territorial waters of a foreign country.


(a) Under International Law vessel not registered by any country is considered a pirate ship and
piracy being a crime against humanity and violative of law of nations is triable also in our courts.

(b) The requirement that the vessel must be licensed and registered in accordance with
Philippine Laws was deleted by Sec. 25, Rule 110 par. c, Criminal Procedure and in lieu - "in
accordance with the principles of International Law."

Q.023. (a) What are the jurisdictional rules over crimes committed aboard foreign merchant
vessels? (b) Which rule is prevalent in the Philippines?

Ans. There are two, namely:

(1) French rule- the nationality of the vessel follows the flag which the vessel flies and so foreign
country will not lose jurisdiction over the vessel unless the crimes committed' affect the peace and
security of the territory or the safety of the state is endangered.

(2) English rule (known also as American rule or Anglo-Saxon rule)- the law of the foreign
country where the foreign vessel is within its jurisdiction is strictly applied, except of the crime
affects only the internal management of the vessel in which case it is subject to the penal law of the
country where it is registered.

(3) We adopt the English rule. (US v. Bulls, 15 Phil. 7, 14)

Q.024. What are the cases where the territorial courts have no jurisdiction over crimes on board
foreign vessels?
Ans. In the following cases:

(1) On board war vessels (warships) because said vessels are con¬sidered part of the state in
whose flag it flies.

(2) When the foreign country in whose territorial waters the crime was committed adopts the
French rule, except when the crime committed affects the national security or public order of such
foreign country.


(a) Offense committed on board a foreign merchant vessel while on Philippine waters is triable
before Philippine courts.(US Bulls, 15 Phil 7, 17-18)

(b) Crimes not involving a breach of public order committed on board a foreign merchant vessel
in transit (i.e., possession of opium) are not triable by Philippine courts (US v. look Chaw, 16, Phil.
573 577-578) however, if tins of opium are landed on Philippine soil, (US v. Look Chaw 18 Phil. 573
577-578) or prison in possession of opium on board foreign vessel not in transit, the Philippine laws
are violated on illegal importation of opium. (US Ah Sing, 36 Phil. 987, 981-982)

(c) Smoking opium on board foreign vessel anchored the Philippine jurisdictional waters
constitutes breach of public order and triable in Philippine courts.(People v. Wong Cheng 46 Phil.
729, 733)

(d) On offenses committed on board foreign warships in territorial waters of the Philippines,
Philippine courts have no jurisdiction(US v. Bull, 15 Phil. 7; *S ok Chaw, 18 Phil. 573; People v. Wong
Cheng, 46 Phil. 729; US v. Fowler, 1 Phil. 614)

Q.025. A consul was to take deposition in a hotel in Singapore. After the deposition, the deponent
approached the consul's daughter and requested that certain parts of the deposition be changed in
consideration for $10,000.00. The daughter persuaded the consul and the latter agreed. Will the
crime be subject to the Revised Penal Code? If so, what crime(3) have been committed?

Ans. Yes, under Art. 2, RPC in relation with the Rules of Court authorizing consul to take
deposition. The crime is bribery though falsification of the deposition.

Q.026 The American Consul accredited to the Philippines while driving his car recklessly and
imprudently along Roxas Boulevard bumped a pedestrian who was crossing the street and the latter
died as a consequence of his injuries. Prose¬cuted in court for the crime of homicide thru reckless
impru¬dence, the Consul claimed diplomatic immunity alleging that he is not subject to Philippine
laws and regulations. Is his defense tenable? Why?

Ans. Consuls under international law do not enjoy the diplomatic immunity enjoyed by
sovereigns or heads of states, am¬bassadors, ministers plenipotentiary and ministers resident;
hence, his defense is not tenable because he could be criminally prosecuted. (Rep. Act. No. 75;
Schencherberger v. Moran, 63 Phil. 250) ¬

Q.027. Penal law define distinct classes of crimes. Dis¬cuss and elucidate on their distinctions.

Ans. Penal laws or crimes in general may refer to any act or omission punishable by the
Revised Penal Code and special laws. Crimes punished under the Revised Penal Code are called
felonies and those penalized by special laws are called (statutory) offenses.

As a rule felony is an act mala in se which is wrongful from its very nature while an offense is an act
mala prohibita which is a wrong only because there is a law punishing it. Misdemeanors are
infractions of the law such as violations of ordinances.

Revised Penal Code also classifies felonies as intentional, if dolo or malice is present, and culpable, if
there is culpa or fault. According to gravity felonies are grave, if penalty is capital or afflictive in any
of its periods; less grave, if the penalty in its maximum period is correctional; and light, if the penalty
is arresto mayor or a fine not exceeding P200.00 or both.

Q.028. What are felonies and what are their elements?

Ans. Acts or omissions punishable by law are felonies (delitos). (Art. 3 Revised Penal Code) Their
elements are:

(1) Acts or omissions.

(2) Punishable by the Revised Penal Code; and

(3) Committed either by dolo or cupla. (People v. Gonzales, GR No. 807762, March 19, 1990,
180 SCRA 324)

Q.029. Discuss the distinction between dolo and culpa. Give an example of each.

Ans. Distinguishing the two:

(1) While both are voluntary, dolo is intentional (malice or deliberate¬-intent); whereas, culpa is
not Intent is replaced by fault.

(2) Dolo involves legal malice or deliberate (evil) intent or with bad purpose (2Bouvier’s Law
Dictionary; 3rd Revision pp. 34564-3455; Galvin v. mill co. 99 Cal. 268=33 Pac. 93 and Com. V.
Kneeland, 20 Pic, Mass. 220); culpa results from negligence, imprudence, lack of foresight or lack of
skill. Imprudence is deficiency of action while negligence is defi¬ciency of perception. Negligent act
must be voluntary (USD v. Barnes, 12 Phil. 93; cited in People v. Lopez, (CA), 44 O.G. 554)

(3) The elements of dolo are: (a) freedom (i.e., absence of irresistible force and uncontrollable
fear) (Art. 12, pars. 5 and 6 Revised Penal Code) (b) intelligence; and (c) intent. Intent is presumed
form the commission of an unlawful act and negative by mistake If facts. On the other hand, the
elements of culpa are: (a) freedom; (b) intelligence; and (c) negligence or imprudence.

Q.030. (a) Is malice or criminal intent an essential requisite if all crimes? Explain. (BAR Q. 1978) (b)
May criminal intent be presumed to exist? Discuss

Ans. (a) No. Malice or criminal intent is not an essential element in all crimes. This element is only
essential in crimes classifiable as mala in se; however, offenses classified as mala prohibita, criminal
intent is not an element.

(b) Since intent is a mental state, the existence of which is shown by the overt acts of a person
(Soriano v. People, 88 Phil. 368), so criminal intent is presumed to exist only if the act is unlawful. It
does not apply f the act is not criminal. (Us Catolico v. 18 Phil. 504) The presumption of criminal
intent may arise from the proof of the criminal act and it is for the accused to rebut this
presumption. (People v. Abando CA-GR No. 23111-R, March 22, 1962) However, in some crimes
intent cannot be presumed being an integral element thereat; so, it has to be proven (i.e., in
frustrated homicide, specific intent to kill is lot presumed but must be proven, otherwise, it is merely
physical injuries.

Q.031. May a crime be committed intent?

Ans. Yes, in two types of offenses: First, offenses that are mala prohibita; and

Second, culpable offenses, where intent is negligence or reckless imprudence.

Q.032. (a) What do you understand by “voluntariness” in criminal law? What are the three
requisites of voluntariness?

Ans. (a) The word voluntariness in criminal law does not mean only in acting in one’s own
violation but it also comprehends the concurrence of freedom of action, intelligence and the fact
that the act was intentional. A criminal act is presumed to be voluntary. Fact prevails over
assumption and in the absence of indubitable explanation, the act must declared voluntary and
punishable. (People v. Macalisang, 22SCRA 699)

(b) All the three requisites of voluntariness in intentional felony (freedom, intelligence and intent)
must be present because a “voluntary act is a free, intelligent and intentional act.”(US v. Ah Chong,
15 Phil. 488, 495)
Q. 033. (a) What is mistake of fact? (b) What are the requisites of mistakes of facts as a defense?

Ans. (a) Mistake of fact is a misapprehension of fact on the parot of the person who caused injury
to another. He is not, however, criminally liable, because he did not act with criminal intent.


(a) While ignorance of the law excuses no one from compliance therewith –ignorantia legis non-
excusat; ignorance or mistake of fact relieves the accused from criminal liability –ingnorantia facti

(b) An honest mistake of fact destroys the presumption of criminal intent which arises upon the
commission of a felonious act. (People v. Conching et. Al. CA, 52 O. G. 293; citing People v. Oanis, 74
Phil. 257;)

(c) The requisites of facts as a defense are:

(1) That the act done would have been lawful had the facts has been as the accused believed
them to be (Us v. Ah Chong 26, Phil. 488; People v. Mamasalaya NO. L-4911, Feb. 10, 1953,92 Phil.
6390,64;); that is, in mistake of fact, the act done by the accused would have constituted (a) a
justifying circumstance under Art. 11(2), RPC; or (b) an absolute cause, such as that contemplated in
Art. 247 par. 2: or (c) an involuntary act.

(2) That the intention of the accused in performing the act should be lawful.

(3) That the mistake must be without fault or carelessness on the part of the accused. So when
the accused is negligent, mistake of fact is not a defense (People v. de Fernando, 49 Phil. 75)

Q.034. Classify intent.

Ans. Intent has two classifications or categories, namely:

(1) General criminal intent- which is presumed from the mere act of doing wrongful/punishable act.
Accused has to rebut this presumption.

(2) Specific criminal intent- is not presumed but is considered an ingredient or element of crime.
Therefor, the prosecution has the burden of proving it. Example: proving the intention to kill in
attempted or frus¬trated homicide, parricide or murder, otherwise it would be merely physical
injuries. Intent to have sexual intercourse may distinguish attempted rape from act of lasciviousness.

Q.035. (a) Distinguish "mala in se" from ,mala prohibita Distinguish Between crimes mala in se and
crimes mala prohibita (b) Mayan act be malum in se and may be, at the same time malum

Ans. Distinguishing the two:

(1) In mala in se, the acts constituting the crimes are inherently evil, bad or wrong, and hence
involves the moral traits of the offender; while in mala prohibita, the acts constituting the crimes are
not inherently bad, evil or wrong but prohibited and made punishable by law for public good.

(2) In mala in se since the moral trait of the offender is involved, the modifying circumstances,
the offender's extent of participation in the crime, and the degree of accomplishment of the crimes
are taken in to consideration in imposing the penalty; these not being the case in mala prohibita
where criminal liability arises when the acts are consummated.

(3) In mala in se, good faith and absence of criminal intent are valid defenses; however, in mala
prohibita, good faith and absence of criminal intent are not valid defenses. (People v. Neri, 140 SCRA
406 (1985)) because it is the commission of the act and not its character or effect that determines
whether the law has been violated. (Luciano v. Estrella, 35 SCRA750; People v. Court of Appeals, 135
SCRA 372 (1985)) ex. Unlawful possession of firearm is malum prohibitum (People v. Elesteri GR No.
6389, May 9, 1989; People v. Bayona, 61 Phil. 181)

Q.036. (a) What is motive? (b) Is motive indicative of crimi¬nal intent? Is lack of motive proof of
inno¬cence? When is it necessary to prove motive? Explain your Answer. When is motive relevant to
prove a case? When is it not necessary to be established? Explain

Ans. (a) Motive is the reason which impels one to commit an act for a definite result while intent
is the purpose to use a particular means to affect such a result. Motive is not an element of a crime
but intent is an element of intentional crimes Motive, if attending a crime, always precede a crime.


(a) The existence of motive alone is not sufficient to support a conviction. (People v. Marcos, 70
Phil. 468; People v. Martinez, 106. Phil. 597) Even a strong motive to commit the crime cannot take
the place of proof beyond reasonable doubt, sufficient to overthrow the presumption of innocence.
Proof beyond reasonable doubt is the mainstay of our accusatorial system of criminal justice
.(People v. Pisalvo, 108 SCRA 211,226)

(b) Lack of motive may be an aid in showing the innocence of the accused (People v. Taneo, 58
Phil. 255, 2157) So lack of motive to kill the deceased has been held as further basis for acquitting
the accused, where the lone testimony of the prosecution witness is contrary to common law
experience and therefore incredible.(People v. Padirayon, 67 SCRA 135)

(c) Motive is important only when the identify of the culprit is in doubt, and not when, he is
positively identified by a credible witness.(People v. Peralta GR.No. 3709-10 July 16, 1986;) In other
words, motive is not essential where the identity of the criminal perpetrator is not in doubt.(People
v. Balbas L-47686, June 24, 1983;122 SCRA 650; People v. Almeda, 124 SCRA 484; People v.
Demetrio, 124 SCRA914; People v. Martinez, 127 SCRA 280) Motive may become necessary to be
(1) In case there is doubt whether the accused has committed the crime or not 2 (US v. Mc
Mann, 4 Phil. 2161; People v. Ragales, L-175231; Nov. 30, 1962; People v. Madrigal-Gonzales, April
30, 1963; GR No. L-166898-90)

(2) When the evidence on the commission of a crime is purely circumstantial or inclusive., proof
of motive is essential.(People v. Aquino, L-37473, June 24, 1983, 122 SCRA 799)

(3) When the criminal act did not give rise to variant crimes.

Q.037. When will criminal liability be incurred?

Ans. Criminal liability shall be incurred:

(1) By any person committing a felony (delito) although the wrongful act done be different from
that which he intended

(2) By any person performing an act which would be an offense against person or property,
were it not for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means.


Q.038. What is the meaning of "committing a felony" under par. 1, Art. 4, Revised Penal Code?

Ans. It means committing a felony which is an act or omission punishable by the Revised Penal
Code, otherwise it is lot a felony. But the felony committed by the offender should be one
committed by means of dolo, that is, with malice, because par. 1, Art. 4 peaks of wrongful act done
"different from that which he intended." If the wrongful act results from imprudence, negligence,
tack of foresight, or lack of skill of the offender his liability should be determined under Art. 365
wl1ich defines and penalizes criminal negligence. It is no also an act or omission punishable by
special law, because an offender violating special law may have not the intent to do an injury to

When a person has not committed a felony, he is not crimi¬nally liable for the result which is not

Q.039. Under par. 1, Art. 4 Revised Penal Code, it states "... although the wrongful act done be
different from that which he intended", what are the causes which may produce a result different
from that which the offender intended?

Ans. The following:

(1) Mistake in the identity of the victim (People v. Oanis, 74 Phil. 257; People v. Gona, 54 Phil.
(2) Mistake in the blow, that is, when the offender intending to do an injury to one person
actually inflicts it on another(aberratio ictus).(People v. Mabug-at, 51 Phil. 967)

(3) The acts exceeds the intent, that is, the injurious result is greater than that intended (praeter
intentionem). (People v. Cagoco, 58 Phil. 524 People v. Tomotorgo, 135 SCRA 238;

Q.040. What are the requisites in order that a person may be held criminally liable for a felony
different from that which he intended to commit?

Ans. The following requisites must be present:

(1) That an intentional felony has been committed; and

(2) That the wrong done to the aggrieved party be direct, natural and logical consequence of
the felony committed by the offender (Us v. Brobst, 14 Phil. 310.319; US v. Mallar, 29 Phil. 14, 19)

However, no felony is committed:

(1) When the act of omission is not punishable by the Revised Penal Code: or

(2) When the act is covered by any of the justifying circumstances enumerated under Art. 11,
Revised Penal Code.

Q.041 The felony committed must be the proximate cause of the resulting injury, what is meant by
such term?

Ans. Proximate cause is that "cause, which, in the natural and continuous sequence, unbroken by
any efficient intervening cauaw, produces the injury and without which the result would not have
occurred. (Bataclan v. Medina, 102 Phil. 181; 38 Am. Jur. 695; Villanueva v. Medina, 102 Phil. 186;
Urbano v. IAC, GR No. 7964 Jan. 7, 1988)

Q.042. Give examples of proximate cause.

Ans. Like the following examples:

(1) Even if the victim is suffering from an internal ailment (i.e. heart disease or tuberculosis) if
the blow delivered by the accused is the efficient cause of death,

(2) or accelerates his death, or is the proximate cause of death, there is a criminal liability.

(3) A victim who jumped into the sea and was drowned because he was threatened and chased
by the accused with a knife. (US v. Valdez, 43 Phil. 497)
(4) If the accused who strangled his wife then suffering from heart disease was found guilty of
parricide even if the death of his wife was the result of heart failure, because the heart failure was
due to fright or shocked due to strangling which is a felony. (People v. Martin, 89 Phil. 18)

Q. 043. When is a felony committed not the proximate cause of the resulting injury? Illustrate.

Ans. When¬

(1) There is an active force that intervened between the felony com¬mitted and the resulting
injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the
accused; or

(2) The resulting injury is due to the intentional act of the victim. (Reyes, Vol. I, p.77)

Illustrative cases of effective intervening causes which break the relation of cause and effect
between the felony committed and the resulting injury; hence, offender liable for the felony
committed, but not liable for the injury as in these cases:

(1) Where the accused wounded the victim at the bank of the hand and 3 weeks later the victim
dies due to tetanus infection of the wound as he returned to work in his farm with bare hands
exposing the wound to tetanus germs. (Urbano v. IAC, L-43964, January7, 1988)

(2) Where a person struck another with his first and knocked him down and horse near them
jumped upon him and killed him, the assailant was not responsible for the death of that other
person.(People v. Rockwell, 39 Mich. 503)

Q.041. (a) What do you understand by aberratio ictus; error in personae and praeter intentionem?
Explain and illustrate aberratio ictus. ((b) Do they alter the criminal liability of an accused? Explain
Ans. The three terms are the three ways by which a person may commit a felony although the
wrongful act done is different from that which he intended. Thus,

(1) Aberratio ictus- there is mistake in the blow meaning to say the offender intending to cause
an injury to one person actually inflicts it to another person because of lack of precision such as A
intending to kill B, tires his gun at the latter, however, in view of poor aim or lack of precision, he hits
instead C, who suffers serious physical injuries.

(2) Error in personae- there is mistake in the identity of the victim¬ e.g., A intending to kill B
shot B in the dark alley. It turned out because of darkness that he shot C, his friend.

(3) Praeter intentionem- the injurious result is greater than what was intended. For example. A,
to give B a lesson boxed the latter Because of the force, B fell down and his head hit cemented post
resulting in head fracture and instant death.
(b) The presence of these circumstances will likely alter the criminal liability of the accused. Thus,

(1) Two offenses are committed by the offender in aberratio ictus. Oftentimes, the crime is
complex- one single act producing two offenses.

(2) The offender shall be guilty of the crime actually committed or that of the crime intended
whichever is lower shall be imposed in the maximum period in error in personae.

(3) Offender is made to suffer the criminal liability he actually commit¬ted in paeter
intentionem; however, mitigating circumstance may be im¬posed because he did not intend to
commit a grave wrong as that which he committed.

Q.042. Nicandro borrowed Valeriano's gun, a high-pow¬ered M-16 rifle, to hunt wild pigs. Nicandro
was accompanied by his friend Felix. On their way to the hunting ground, Nicandro and Felix met
Pedro near a hut. Pedro told them where to hunt. Later, Nicandro saw a pig and then shot and killed
it. The same bullet, however, that killed the pig struck a stone and ricoketed hitting Pedro on his
breast. Pedro later died. May Nicandro beheld liable for the death of Pedro? Explain.

Ans. Nicandro may be held answerable for Pedro's death. While his death would seem accidental,
the requisites of exempt¬ing circumstances of accident are in attendance. The requisites needed

(1) A person is performing a lawful act;

(2) With due care;

(3) He causes an injury to another by mere accident, and

(4) Without fault or intention of causing it.(Art. 12 par. 4 Revised Penal Code)

Therefore when Nicandro borrowed Valeriano's high pow¬ered M-16 rifle and use it for hunting
pigs, a crime of illegal possession of firearm being committed because the problem is not reflected
that there, a license to possess such high-powered gun and carry outside his residence. During the
shooting of the pig, Nicandro cannot be said to have been performing a lawful act. Additionally,
considering that M-16 is a high-powered gun, Nicandro was negligent in not foreseeing that bullet
fired from said gun may rebound.

Q.043. Distinguish intent from motive in criminal law

Ans. Motive is the moving power which impels one to action for a definite result; whereas, intent
is the purpose to use a particular means to effect such results. Motive is not an essential element of
a felony and need not be proved for purposes of conviction; while intent is an essential element of
felonies by dolo.
Cross-Reference: See answer to Q. No.036. (b), pp. 16-17.

Q.044. May crime be committed without intent?

Ans. Yes, a crime may' be committed without criminal intent if such is a culpable felony
(culpa); wherein intent is substituted by negligence or imprudence and also in a malum prohibitum,
or if an act is punishable by special law.

Cross-Reference. See Q. No. 036. pp. 16-17.

Q.045. Distinguish aberatio ictus from error in personae

Ans. The two are distinguished:

(1) In aberratio ictus there are two offenses, one against the person that he missed and second,
the one erroneously hit; whereas in error in personae there is mistaken identity, the victim was not
intended to.

(2) In aberratio ictus, two felonies or a complex crime may result; whereas, only one crime is
'Committed error in personae.

Q.046. When are light penalties punishable and who are liable in light penalties

Ans. Under the Art. 7 of the Revised Penal Code, light felonies e punishable only when they have
been consummated, with the exception, however, of those committed against persons or proper¬ty.
Principals and accomplices are liable under Art. 16 of the Revised Penal Code.

B. Impossible Crimes

Q.047. What is meant by impossible crime? Explain impossible crime.

Ans. An impossible crime is an act which would be an offense against person or property were it
not for the inherent impossibility of its accomplishment or on account of the enjoyment of
inadequate or ineffectual means.

Example: killing a dead person.

Q.048. What are the elements of impossible crime?

Ans. The elements are:

(1) The acts are performed which would be a crime against persons or property


(a) However, the felony against person or property should not be actually committed, otherwise
no impossible crime to speak of.

(b) If the act performed would be an offence other than a felony against person or against
property, there is no impassible crimes

(2) There is a criminal intent (evil intent);

(3) That its accomplishment is inherently impossible, or that the means employed is either
inadequate or ineffectual.

(4) That the act performed should not constitute a violation of another provision of the Revised
Penal Code.

There must be either legal impossibility or physical impossibil¬ity of accomplishing the intended act
in order to qualify the act as impossible crime.

Q.049. Why impossible crime is punishable?

Ans. The reason for punishing an impossible crime is that subjectively the offender is a criminal
although objectively no crime is committed. If the act performed constitutes another distinct felony,
an impossible crime is not committed because objectively a crime is committed.

Note: The commission of an impossible crime is indicative of criminal propensity or criminal

tendency on the part of the actor. Such person is a potential criminal. According to positivist
thinking, the community must be protected from anti-social activities, whether actual or potential,
of the morbid type of man called "socially dangerous person."

Q.050. What is meant by "inherent impossibility of its accomplishment" in impossible crime?

Ans. It means that the act intended by the offender is by it nature one of impossible
accomplishment, either cause by legal impossibility of physical impossibility of accomplishing the
in¬tended act.

Examples: intending to poison A by using arsenic but actually common salt or sugar being mixed with
the soap (employment of inadequate means) or murdering a corpse. (People v. Balmores, 85 Phil.
493, 496) or shooting A with revolver with no bullets (i.e., employment of ineffectual means).

Q.051. When is there legal impossibility in impossible crime?

Ans. Legal impossibility occurs where the intended acts, even if fully completed, would not
amount to a crime. Legal impossi¬bility would apply to these circumstances:

(1) The motive, desire and expectation is to perform an act ion violation of the law;

(2) There is intention to perform the physical act;

(3) There is a performance of the intended physical act; and

(4) The consequence resulting from the intended act does not amount to a crime (US v. Benigan 482
F2d. 1717(1973); cited by Ortega Note, p.13; Gregorio, supra, p. 31) I.e., killing a dead person. (Intod
v. Court of Appeals, 215 SCRA 78)

Q.052. What is meant by factual impossibility in impossible crime?

Ans. Factual impossibility occurs when extraneous circum¬stances unknown to the actor or
beyond his control prevents the commission of the intended crime (i.e., pickpocketting an empty
coat pocket or shooting' a person in a place where he used to be but was not around at that time.

Q. 053. What is the penalty imposable to impossible crime?

Ans. Arresto mayor or a fine from P200.00 to P5OO.OO which

is imposed by the court, considering the social danger and the degree of criminality of the offender.
(Art. 59, Revised Penal Code)

Q. 054. Buddy always resented his classmate, Jun. One day Buddy planned to kill Jun by mixing
poison in his lunch. Not knowing where he can get poison, he approached another classmate, Jerry
to whom he disclosed his evil plan. Because he himself harbored resentment towards Jun, Jerry gave
Buddy a poison, which Buddy placed on Jun's food. However, Jun did not die because unknown to
both Buddy and Jerry, the poison was actually powdered milk.
(a) What crime or crimes, if any, did Jerry and Buddy commit?

(b) Suppose that, because of his severe allergy to pow¬dered mill, Jun had to be hospitalized for
10 days for ingesting it. Would your answer to the first question be the same?

Ans. (a) Jerry and Buddy are liable for the so-called "impos¬sible crime". In other words,
the act done with criminal intent by Jerry and Buddy would have constituted a crime against person
were it not for the inherent inefficacy of the means employed.

(b) No. This time both are liable for less serious physical injuries, for causing such hospitalization
resultant from mixing the food with powdered milk.

Q. 055. A, B, C and D, all armed with armalites proceeded to the house of X. Y, a neighbor of X, who
happened to be passing by, pointed to the four culprits the room that X occu¬pied. The four culprits
peppered the room with bullets. Unsat¬isfied, A even threw hand grenade that totally destroyed X's
room. However, unknown to the four culprits, X was not inside the room and nobody was hit or
injured during the incident. Are A, B, C and D liable' for any crime? Explain

Ans. Yes, A, B, C, and D are chargeable or liable for destruc¬tive arson because of the
destruction of X's room with the use of an explosive (hand grenade). As noted, liability for an
impossible crime is to be imposed only if the act would not constitute any other crime under the
Revised Penal Code.

Q.056. Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring
and fetch her to and from school. Enrique wrote a ransom note demanding P500,000.00 from Carla's
parents in exchange for Carla's free¬dom. Enrique sent the ransom note by mail. However, before
the ransom note was received by Carla's parents, Enrique's hideout was discovered by the police.
Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note
was not received by Carla's parents, the investi¬gating prosecutor merely filed a case of "impossible
Crime To Commit Kidnapping" against Enrique. Is the prosecutor cor¬rect? Why?

Ans. The Information filed by such prosecutor is not correct because there is no such
thing as "Impossible Crime to Commit Kidnapping" because impossible crimes are limited to acts
when performed would be against persons or property. Kidnapping is against personal liberty and
not against persons' or property.

Q. 057. What should the judge do of a case before him where it should be repressed yet not
punishable by law?
Ans. Since the act does not constitute a crime, the proper judgment should be acquittal but the
Court shall report to the Chief Executive that the act be made subject of a penal legislation citing the
reasons supporting the same.

Q. 058. What shou1d be done if the law violated has imposed excessive penalties?

Ans. The court shall render judgment of conviction and impose the penalty which clearly appears
to be excessive be¬cause

(1) the accused acted with lesser degree of malice; and/or

(2) there is no injury or the injury caused is of lesser gravity.

He should not suspend the execution of the sentence; how¬ever he should submit a statement to
the Chief Executive, through the Secretary of justice, recommending executive clem¬ency.


(a) It is the duty of the judicial officers to respect and apply the law, regardless of their private
opinion. (People v. Limaco, 88 Phil. 35) Courts are not concern with the wisdom, efficacy morality of
laws being within the jurisdiction of Congress. The only function of the judiciary is to interpret the
laws and if not in disharmony with the Constitution, to apply them (People v. Limaco, 88 Phil. 35)

(b) The courts should interpret and apply the laws as they fin them on the books, regardless of
the manner their judgment are executed and imple¬mented by the executive department. (People v.
Olaes, 105 Phil. 502)

(c) Judge has the duty to apply the law as interpreted by the Supreme Court use any deviation
from a principle laid down by the latter would unavoidably i.e., as a sequel, unnecessary
inconveniences delays and expenses to the litigants (People v. Santos et. Al.,104 Phil. 560)

Q. 059. When does Article 5, RPC on the action to be taken judges on "excessive penalties" not

Ans. In the following cases:

(1) When excessive penalty is intended to enforce a public policy solve rampant
lawlessness.(People v. Stoista, 93 Phil. 647; People v, Tiu Ua, 96 Phil. 738, 741); and

(2) When excessive penalty is imposed by special law, not by the Revised Penal Code (People v.
Salazar, 102 Phil. 1184; People v. Stoista, 93 Phil. 654; People v. Lubo, 101 Phil. 179; Ayuda v. People
GR No. L-6249, April12, 1954)
C. Stages of Crimes

Q. 059. What are the stages in the commission of an offense. Explain each briefly?

Ans. The stages of crimes are: attempted, frustrated and consummated. Explaining each¬

(1) Attempted felony- There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution which should produce
the felony by reason of some cause or accident other than his own spontaneous desis¬tance.

(2) Frustrated felony- it is frustrated when the offender performs all le acts of execution which
would produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

(3) Consummated felony- A felony is consummated when all the elements necessary for its
execution and accomplishment are present. (Art. 6, Revised Penal Code)

Q .060. What are the stages of the development of crime?

Ans. From the moment the culprit conceives the idea of committing a crime up to the realization
of the same, his act pass through certain stages and these stages are identified as:

(1) Internal acts; and

(2) External acts.

Q. 061. Explain internal acts.

Ans. Internal acts, such as mere ideas in the mind of a person are not punishable even if, had they
been carried out, they would constitute a crime. This is because of the rule that intention and effect
must concur.

Example: One intended to commit treason and joined armed men believing they were
Makapilis, when they were actually guerillas. No liability of treason inspite of his treasonous

Q. 062. What acts within the coverage of "external acts"?

Ans. External acts cover preparatory acts and acts of execu¬tion.

Q. 063. Are preparatory acts punishable?

Ans. No, as a general rule because proposal and conspiracy to commit a felony which are
preparatory acts, are not punishable. This rule admits exceptions:

First, when the law provides for their punishment in certain felonies. (Art. 8, Revised Penal Code)

Second, when preparatory acts are considered by themselves an independent crimes such as:
possession of picklocks under Art. 304, Revised Penal Code which is preparatory to the act of
committing robbery. (Arts. 299 and 302, Revised Penal Code)

Note: These preparatory acts- buying poison or carrying weapon in order to kill or bringing
inflammable materials to the place where the house is to burned, are not punishable because they
do not constitute attempted homicide or arson, which is the first act of execution of these referred

Q. 064. Are acts of execution punishable?

Ans. Yes. they are generally punishable under the Revised Penal Code and the stages of acts of
execution are: attempted, frustrated and consummated.

Q. 065. What are the elements of attempted felony?

Ans. They are:

(1) The offender commences the commission of the felony directly by overt acts.

(2) He does not perform all the acts of execution which should produce the felony;

(3) The offender's act should not be stopped by his own spontane¬ous desistance; and

(4) The non-performance of all acts of execution Was due to cause or accident other than has
spontaneous desistance (Reyes, supra p. 92)

Q. 066. When is the commission of a felony considered to be "directly by overt acts"?

Ans. When the following requisites are present, namely:

(1) That there be external acts; and

(2) Such external acts have direct connection with the crime intended to be committed.

Q. 067. What is "overt act"?

Ans. An overt act is some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried to its complete termination
following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator will logically and necessarily ripen into a concrete offense.

An overt act in criminal law, is an outward act done in pursuance and manifestation of a criminal
intent or design. (US v. Hpat, 47 F. Supp. 836 cited People v. GoKay L- 17474-Q Dec. 2957) So no
attempted felony by omission.

Only offenders who personally execute the commission of a crime can be guilty of attempted felony.
The word "directly" suggests that the offender must commence the commission of the felony by
taking direct part in the execution of the act.

The following do not constitute an overt act of crime such as the following:

(1) Drawing or trying to draw a pistol is not an overt act of homicide. To constitute attempted
homicide the person using the firearm must fire he same, with intent to kill at the offended party,
without however inflicting mortal would on the latter for having missed the target.

(2) Raising a bolo as if to strike the offended party with it is not an overt wt of homicide. It
constitutes a crime of threats under Art. 285 par. 1, revised Penal Code. If a blow is strike not hitting
the party, an overt act )f the crime of homicide is committed

Note: The overt acts leading to the commission of the offense are not punishable except when they
are aimed directly at its execution, and therefore, they must have an immediate and necessary
relation to the offense. (Viada, p. 47; robbery is not justified)

Q. 068. What is an indeterminate offense? Illustrate.

Ans. Indeterminate offense is one the purpose of the of¬fender performing an act is not certain.
Its nature in relation to its objectives is ambiguous.

For example: A is found inside a store. His admission raises these questions: Is A to rob, to cause
physical injuries on the inmates or to commit any crime? The charge for attempted
Q. 069. A awakened one morning with a man sleeping in his sofa. Beside the man was a bag
containing picklocks and similar tools. He found out that the man entered his sala by cutting the
screen on his window. If you were to prosecute this fellow, for what crime are you going to
prosecute him?

Ans. He cannot be charged for robbery because there is no overt act to that direction. However,
he can be charged with two crimes, namely: qualified trespass to dwelling and illegal posses¬sion of
picklocks and other similar tools.

Q. 070. Give the specific rules on spontaneous desistance.

Ans. Basically,

(1) No attempted felony when the actor does not perform all the acts of execution by reason of
his own spontaneous desistance. The desistance may be through fear or remorse. (People v.
Pambaya, 60 Phil. 1002) Desistance may not actu-ally on good motive but It must comes from the
person who has begun it, and that he desisted because of his own free will.

(2) The desistance should be made before all the acts of execution are performed (Le., no
proper desistance in this case- i.e., stealing chickens and thereafter returning them to the owner.

(3) The desistance which exempts from criminal liability has reference to the crime intended to
be committed, and has no reference to the crime actually committed by the offender before his

Q. 071. What is the subjective phase and objective phase of the offense? Explain.

Ans. Subjective phase is that portion of the acts constituting the crime, starting from the point
where the offender begins the commission of the crime that point where he has still control over his
acts, including their natural course.

If between these two points the offender is stopped by any cause outside of his own voluntary
desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frus¬trated provided the crime is not produced. (US v.
Eduave, 36 Phil. 209) The act then of the offender passed from the subjective phase to the objective
phase of the crime.
The objective phase is the result of the acts of the execution, that is, the accomplishment of the
crime. If the subjective and objective phases are present, there is a consummated felony.

Q. 072. What are the determining factors (criterial) in the three stages of crime? How to determine
whether the crime is only attempted, or frustrated or it is consummated?

Ans. In deciding whether a felony is attempted, frustrated or consummated, the same is

determined by these three factors or criteria:

(1) The nature of the offense;

(2) The elements constituting the felony; and

(3) The manner of committing the same.

Q.073. Explain the nature of the offense.

Ans. Speaking of nature of an offense, these are some ob¬served rules.

First, there are crimes where the three stages of crimes are present (i.e.,material crimes); some
crimes the three stages are not present like only consummated stage with no attempted or
frustrated offenses (formal crimes- i.e., slander).

Second, In the following crimes

(1) Involving taking of human life-i.e., parricide, homicide and murder, in the frustrated stage, it
is indispensable that the victim be mortally wounded or injured because it is only then that death
will follow. Other¬wise if not fatal, it is only attempted.

(2) In arson, even if only a portion of the building is burned, arson is consummated because the
total burning of the building is not necessary to consummate the crime. If fire started and no portion
of the building was burned, the arson is frustrated (US v. Valdez, 39 Phil. 240) If office supplies and
equipment already burned but without burning the building the crime is attempted arson (People v.
Garcia (CA) 49 O. G. 558) It is also attempted arson when the offender was apprehended when he
was about to strike the match to set fire (People v. Go Kay, CA 54O.G. 2225) .

(3) In rape, even slight penetration is already consummated (People v. Hernandez, 49 Phil. 980;
People v. Villamor, 37 O.G. 947) be¬cause the Supreme Court has consistently held that for rape to
be com¬mitted, full penetration is not required (People v. Alojado, 305 SCRA 236(1999); People v.
Bation, 305 SCRA 253(1999) The presence or absence of spermatozoa is immaterial since it is not
ejaculation but penetration which constitutes the crime of rape(People v. Acala, 307 SCRA
330(1999)Rape may either be frustrated or attempted.(Rape is attempted if the organ of a 12-year
old girl although the girl felt it touched her organ (People v. nopia, L-3639-39, April 26, 1982, 113
SCRA 599) The mere touching by the male's organ or instrument of sez of the labia of the pruden
dum of the woman's private parts is sufficient to consummate rape(People v. Mahinay, 302 SCRA

Note: Anti-Rape Law of 1997 (Rep. Act No. 8535) took effect on October 22, 1997 and cannot be
given retroactive effect (People v. Padilla, 301 SCRA 265) Since rape has been reclassified as a crime
against persons under Articles 266-A and 266-6 it may now be prosecuted even without a complaint
filed by the offended party (People v. Mahinay, 302 SCRA 455(1999) Rape may now be committed
even by a woman and the victim may even be a man. (Ibid)

(4) In theft, the unlawful taking is complete and the article has come under the final control and
disposal of the offender, the theft is consum¬mated. The fact determinative of consummation is the
ability to dispose fully of the article stolen even it if were more or less monetary.

(5) In estafa, unlike theft, damage is an essential element in estafa. Estafa is either attempted
or frustrated if there is no damage provided there is abuse of confidence or deceit.

Third, some crimes do not admit of attempted or frustrated stage but only consummated (formal
crimes) like the crime of physical injuries- because the penalty is based on gravity of the offense.

Fourth, crimes penalized by special law usually consum¬mated offense with no attempted or
frustrated -i.e., possession of firearm, possession of shabu (Rep. Act No. Dangerous Act of 2002 and
illegal possession of explosives being special law. (People v. Natalio, GR No. 00392-CR March 10,
1966, O. G. Vol. 6, No. 29)

Q.074. Explain elements of some crimes as criterion in determining the stage of execution.

Ans. Crimes differ in elements like the following:

(1) In estafa, the element of damage is essential before the crime can be consummated.

(2) In theft, the intent to cause damage is not essential in theft but the intent to gain.

(3) In crimes against persons the element of intent to kill is important otherwise its absence is
only physical injuries.

(4) In robbery with homicide the elements are:

(a) the taking of personal property is perpetrated by means of violence or intimidation against a

(b) The property taken belongs to another;

(c) The taking is characterized by intent to gain or animus lucarandi;

(d) On the occasion of robbery or by reason thereof, the crime of homicide is committed.
(People v. Sumallo, 307 SCRA 521)
(5) In special crimes of illegal recruitment, the elements are:

(a) The person charged with the crime must have undertaken recruitment activities (or any of
the activities enumerated under Art. 34 of the Labor Code as amended);

(b) The said person does not have a license or authority to do so (Boneng v. People, 304 SCRA
252; People v. Borromeo, 305 SCRA 180; People v. Castillon, 306 SCRA 271)

On the other hand, if illegal recruitment is in large scale, the elements are:

(a) That the accused engaged in acts of recruitment and placement of workers as defined under
Art. 13(b) or any prohibited activities under Art. 34(Prohib-ited Practices) of the Labor Code;

(b) That the accused had not complied with the guidelines issued by the Secretary of Labor and
Employment, particularly with respect to the requirement to secure a license or an authority to
recruit and deploy workers, either locally or overseas; and

(c) That the accused committed unlawful acts against three or more persons, individually or as a
group(People v. Mercado 304 SCRA 504 (199); People v. Enriquez, 206 SCRA 739; People v. Moreno,
314 SCRA 556)

Q. 075. What are the elements of frustrated felony? Its requisites?

Ans. The elements are:

(1) The offender performs all the acts of execution;

(2) All the acts performed would produce the felony as a conse¬quence;

(3) But the felony is not produced;

(4) By reason of causes independent of the will of the perpetrator

On the other hand, the requisites of a frustrated felony are:

(1) That the offender has performed all the acts of execution which would produce the felony

(2) That the felony is not produced due to causes independent of the perpetrator's wil1. (People
Orita, GR No. 88724, April 3, 1990,184 SCRA 105, 113)

Q. 076. Discuss the manner of committing the crimes.

Ans. The manner of committing may result in:

(1) Formal crimes-crimes consummated in one instant, no attempt like:

(a) slander and false testimony;

(b) Sale of marijuana and other prohibited drugs because mere act of selling or acting as broker
consummates the crimes (63 C. J. Sec. 5, p. 184)

(2) Crimes consummated by mere attempt or proposal or by over act like

(a) Flight to enemy's country (Art. 121, RPC);

(b) Corruption of minors (Art. 340, RPC)'

(c) Crime of treason because there is no attempted treason because the over act in itself
consummates the crime.

(1) No felony by omission because no overt acts being executed;

(2) Crimes requiring the intervention of two persons to commit them are consummated by
mere agreement like:

(a) betting in sport contest (Art. 197 RPC); and

(b) corruption of public officers (Art. 212, RPC);

(3) Material crimes- when the 3 stages of execution are required not by single instant or single
act such as homicide, murder.

(4) There is no attempted or frustrated impossible crimes.

Q. 077 (a) On what point frustrated felony is the same as attempted felony?

(b) How frustrated felony being distin¬guished from attempted felony.

Ans. (a) In both cases, the offender has not accomplished his criminal purpose.

(b) Distinguishing the two:

(1) In frustrated felony the offender has performed all the acts of execution which would
produce the felony as a consequence; whereas, in attempted felony, the offender merely
commences the commission of a felony directly by overt act and does not perform all the acts of

(2) In frustrated felony, the offender has reached the objective phase of crime; however, in
attempted felony, the offender has not passed the subjective phase;

(3) In frustrated felony there is no intervention of e foreign or extra¬neous cause or agency

between the beginning of the consummation of the crime and the moment when all of the acts have
been performed which should result in the consummated crime, while in attempted felony there is
such intervention and the offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by some cause apart from his own
voluntary assis¬tance. (US v. Eduave, 36 Phil. 209,212; People v. Orita, 284 SCRA m105, 113)

Q. 078. (a) State the Similarity of attempted or frustrated felony from impossible crime. (b)
How is attempted or frus¬trated felony being distinguished from impossible crimes.

Ans. (a) They may be identical because in all the three, the evil intent of the offender is not

(b) Distinguishing them:

(1) While in impossible crime the evil intent of the offender cannot be accomplished, in
attempted or frustrated felony, the evil intent of the offender is possible of accomplishment.

(2) In impossible crime, the evil intent of the offender cannot be accomplished because it is
inherently impossible to accomplice or because the means employed by the offender is inadequate
or ineffectual in attemp¬ted for frustrated felony, what prevented the accomplishment is the
intervention of certain cause or accident in which the offender had no part.(Reyes, p.107)

Q. 079. When is a felony consummated?

Ans. A felony is consummated when all the elements necessary for its execution and
accomplishment are present.

Q.080. What are the effects when the required elements are not present or proven?

Ans. The effects are:

(1) No crime being committed

(a) If the element or at/use of confidence is not proved in estafa. However,

there may be a civil liability.

(b) In taking personal property from another, when the element of gain is

lacking on the part of the person taking, crime of theft is not committed.

(2) Crime may either be attempted or frustrated like the following:

(a) Since death is an element of homicide, if such element does nor

happen, the crime is not consummated but either be attempted or frustrated.

(b) When element of damage is not proven in estafa, the accused may either
be guilty of attempted for frustrated stage

(3) When another felony is shown to have been committed like these instances:

(a) In the prosecution for forcible abduction (Art 342) if the element of lewd designs is not
proved, the accused may be held liable for kidnapping and serious illegal detention (Art. 267);
another felony.

(b) In the prosecution of robbery with violence against persons (Art. 294) if the element of
intent of gain is not proved, the accused may be found guilty of grave coercion (Art. 286) another

Q.081. In a jewelry section of a big departmental store, Julia snatched a couple of bracelets and put
these in her purse. AT the store's exist, however, she was arrested by the guard after being radioed
by the store personnel who caught the act in the store's moving camera. Is the crime consummated,
frustrated or attempted?

Ans. The crime of theft is fully consummated because taking with intent of gain is fully executed
and completed

Q. 081. At about 11 :20 A.M. W noticed that the nipa roof of their house was on fire. He got up to
get water with which to extinguish the fire. While putting out the fire W noticed X near the house
carrying a pole to the end of which was attached a rug soaked with gasoline. W, shouted: "Fire!",
"Fire!" and started to put out the fire. With the help of some neighbors, W succeeded in putting out
the fire but only after a small portion of the roof had been burned! Is liable for frustrated" or
consummated arson?

Ans. X is chargeable or liable with consummated arson because all the acts of execution and
accomplishment are present (People v. Hernandez, 534 Phil. 122) and there is already partial
burning of the roof of the house.

Q. 082. A, a, C and D all armed, robbed a bank, and when they were about to get out of the bank,
policemen came and ordered them to surrender but they fired on the police officers who fired back
and shot it out with them.

(a) Suppose, a bank employee was killed and the bullet which killed him came from the firearm
of the police officers, with what crime shall you r charge A, B, C and D?

(b) Suppose, it was, robber D who was killed by the police¬men and the prosecutor charged A,
a and C with robbery and homicide. They demurred arguing that they (A, B, C) were not the ones
who killed robber D, hence, the charge should only be robbery. How would you resolve their
Ans. (a) They should be charged properly with the crime of robbery with homicide (composite
crime) with all elements pre¬sent because there was death brought about by the acts of said
offenders on the occasion of such robbery [People v. Sumallo, 307 SCRA 521 (1999)]

(b) The argument is not tenable. The filing of composite crime of robbery with homicide is
correct. The death of the robber is on the occasion of such robbery [People v. Sumallo, 307 SCRA 521
(1999); People v. Paraiso, 319 SCRA 422(1999)J. If two sepa¬rate offenses be filed we have
anomalous situation of two cases: Robbery against the robbers. Homicide against the policemen.


A. Light Offenses

Q. 083. What do you mean by light felonies?

Ans. They are those infractions of law for the commission of lich the penalty of arresto menor or
a fine not exceeding 200 pesos or both is being provided. (Art. 59, par. 3, Revised Penal Code) They
are punishable only when consummated. except those committed against persons or property
because there is involvement of moral depravity of the offender

In light penalties only principals and accomplices are liable. It the accessories. (Art. 16, Revised Penal

Q. 084. (a) Enumerate the light felonies punished by the revised Penal Code. (b) Which of them are
crimes against property? (c) Against Persons?

Ans. (a) They are:

(1) Slight physical injuries. (Art. 266, RPC)

(2) Theft (Arts. 309, pars. 7 and 8, Revised Penal Code”)

(3) Alteration of boundary marks.(Art. 313, Revised Penal Code)

(4) Malicious mischief.(Art. 328., par 3; Revised Penal Code)

(5) Intriguing against honor (Art. 364, Revised Penal Code)

(b) Light felonies against property are:

(1) Art. 309 No.7-theft by hunting or fishing or gathering fruits, cereals or other forest or farm
products upon an enclosed estate or field where trespass is forbidden and the value of the thing
stolen does not exceed P5.00;

(2) Art. 309 No. 8- theft where the value of the stolen property does not exceed P5000 and
offender was prompted by hunger, poverty or the difficulty of earning a livelihood;

(3) Art. 313- alteration of boundary marks;

(4) Art. 328 No.3; Art. 329 no. 3- malicious mischief where the damaged is not P200.00 or if it
cannot be estimated.

(c) Light felonies against person-light physical injuries. (Art. 266, Revised Penal Code)

B. Conspiracy and Proposal to Commit Felony

Q.085. Define conspiracy and proposal.

Ans. Defining them:

(1) Conspiracy- exist when two or more persons come to an agree¬ment concerning the
commission of a felony and decide to commit it(Art. 8, RPC; People of Nova, 306 SCRA 15 (; People v.
Abdul, 310 SCRA 264(1999))

(2) Proposal- there is proposal when the person who has decided to commit a felony proposes
its execution to some other person or per¬sons. (Revised Penal Code)

Q.086. Are conspiracy and proposal to commit felony punishable? When are they considered

Ans. No, generally, unless there is a law which specifically provides a penalty therefor. Reason for
the rule: conspiracy and proposals are only preparatory acts.

Q. 087. What are the requisites of conspiracy?

Ans. The requisites are:

(1) That two or more persons come to an agreement. Agreement presupposes meeting of the
minds of two or more persons.

(2) That the agreement concerned the commission of a felony; and

(3) That the execution of the felony be decided upon.