2019 PRE-WEEK BAR REVIEWER

BY JUDGE MARLO B. CAMPANILLA

Warning: This is the intellectual property of Judge Campanilla. Copying any parts
of this work in writing materials or book for publication without proper attribution is
prohibited by law

1. Territoriality – The ground occupied by US embassy is in fact the territory

of the USA to which the premises belong through possession or ownership. A
person who committed a crime within the premises of an embassy will be
prosecuted under the law of Philippines because of the principle of territoriality
(Reagan vs. Commission on Internal Revenue, 30 SCRA 968).

a. Effects - For purpose of venue and territoriality principle in Article 2

of the Revised Penal Code, the place of commission of the criminal act and the
place of occurrence of the effect of such act which is an element of the offense
shall be considered. If one pulled the trigger of his gun in Quezon City and hit
the victim in manila who died as a consequence, Quezon City and manila,
which are the places of commission of the criminal act and the occurrence of
the criminal effect, are proper venues. If the psychological violence consisting of
marital infidelity punishable under RA No. 9262 is committed in a foreign land
but the psychological effect occurred in the Philippines since the wife and the
children of the respondent, who suffered mental anguish, are residing in the
Philippines, our court can assume jurisdiction (see: AAA vs. BBB, G.R. no.
212448, January 11, 2018). However, if the commission of the criminal act
consummates the crime and the effect thereof is not an element of the crime,
the place of occurrence of the effect shall not be considered for purpose of
venue and territoriality rule. Bigamy committed in a foreign land is beyond the
jurisdiction of our court although the offended spouse is residing in the
Philippines since the psychological effect of bigamy to him/her is not an
element thereof.

b. Convention of the law of the sea - Under the Convention on the Law
of the Sea, the flag state of foreign merchant vessel passing through the
territorial sea of another state has jurisdiction over crimes committed therein.
However, a coastal state such as the Philippines can exercise jurisdiction over
any crime committed on board such ship in the following cases: (1) if its
consequences extend to the coastal State; (2) if it disturbs the peace of the
country or the good order of the territorial sea; (3) if the ship master or a
diplomatic or consular officer of the flag State requested assistance from the
local authorities; or (4) if it is for the suppression of traffic in narcotic drugs or
psychotropic substances. Murder or serious physical injuries committed in a
foreign vessel anchored in a Philippine port against a passenger thereof is
within the jurisdiction of the Philippine court since this crime disturb the peace
of the country.

c. Regime of islands - Under the principle of territoriality, the court has

also jurisdiction over crime committed in Kalayaan Islands or Scarboruogh
Shoal because the Baseline Law (RA No. 9522) declares that the Philippines
exercise sovereignty and jurisdiction over it.

d. 200-miles exclusive economic zone - The Philippines has no

sovereignty over the 200-miles exclusive economic zone. Under the convention
of the law of the sea, the Philippines has sovereign right to fish and to exploit
the natural resources in the zone. This sovereign right is not equivalent to
sovereignty. Under the convention, foreign States have the freedom of
navigation and overflight over the exclusive economic zone of the Philippines.
Freedom of navigation and overflight cannot be exercised in a place where a
State has sovereignty such as such its 12-mile territorial water. Under the
convention, the Philippines has limited jurisdiction over crimes committed
within the exclusive economic zone such as those involving fiscal, custom,
immigration, health and safety. A State has absolute jurisdiction over crimes
committed in a territory over which it has sovereignty subject only to a few
exceptions under international laws. The recognition of freedom of navigation
and overflight and the limited jurisdiction over crimes committed in the
exclusive economic zone militate against the concept of sovereignty.

If a Chinese fishing vessel deliberately bump a Filipino vessel in the West

Philippines Sea covered by the exclusive economic zone of the Philippines, and
as a consequence, several Filipino fishermen died, the Philippines’s jurisdiction
over the crime of murder cannot be based on the theory that the Philippines
has sovereignty over the zone. Other principles must be used to justify its
jurisdiction over murder committed within the zone such as flag state rule or
passive personality principle.

2. Extraterritoriality – Under the flag state rule, the Philippines has

jurisdiction over hijacking of PAL airplane in an American territory since it its
registered in the Philippines but not over murder committed in vessel
registered in Panama while on high seas although it is owned by a Filipino.
Under the protective principle, the court has jurisdiction over forgery of
Philippine money committed in Taiwan whether by a Filipino or an alien but
not over forgery of US dollars committed therein. Under the extraterritoriality
rule, the court has jurisdiction over plunder, direct bribery and falsification of
document by a public officer in a Philippines consular premises stationed in
America but not corruption of public officer and falsification of document
committed by private individual as principal by inducement. Under the
universality principle, the court has jurisdiction over piracy committed on high
seas for being a universal crime but not over murder qualified by the
circumstance of taking advantage of the calamity brought about by piracy on
high seas. The 12-mile territorial water of Taiwan or Sabah may be considered
as high seas; hence, piracy committed therein can be prosecuted in the
Philippines (People vs. Lol-Lo and Saraw, G.R. No. L-17958, February 27,
1922).

3. Concept of culpa - There are two views on whether culpa is a crime or just
a mode of committing a crime.

Under the first view, culpa or reckless imprudence is not a crime in

itself; it is simply a way of committing it (People vs. Faller, G.R. No. L-45964,
April 25, 1939; Angeles vs. Jose, G.R. No. L-6494, November 24, 1954).
Following this first view, if a person is killed, property is damaged and another
person suffered slight physical injuries through reckless driving on the part of
the accused, culpa under Article 3 of the Revised Penal Code shall be
considered as a mere mode of committing crimes while the killing, causing
damage to property and inflicting slight physical injuries are the crimes
themselves. Hence, the accused committed three crimes, to wit: homicide
through reckless imprudence, damage through property through reckless
imprudence, and slight physical injuries through reckless imprudence. But
since a single reckless imprudence produces these crimes, the accused is liable
for a complex crime of homicide and damage to property through reckless
imprudence under Article 48 of the Revised Penal Code. (Lontoc, Jr. v.
Gorgonio, L-37396, April 30, 1979; Reodica vs. CA, G.R. No. 125066, July 8,
1998; Gonzaga v. People, G.R. No. 195671, January 21, 2015, Perlas-Bernabe).
The third crime will be considered as a separate crime of slight physical
injuries through reckless imprudence. The third crime is a light felony, which
cannot be made a component of a compound crime since under Article 48
speaks of a single act constituting a grave or less grave felony. (People vs.
Turla, G.R. No. L-26388, February 14, 1927)

Under the second view, culpa is not just a mode of committing a crime. It
is the crime itself. (Quizon vs. Hon. Justice of Peace, G.R. No. L-6641, July 28,
1955; People vs. Buan, L-25366, March 29, 1968; People vs. Cano, G.R. No.
19660, May 24, 1966). Following this second view, if a person is killed,
property is damaged and another person suffered slight physical injuries
through reckless driving on the part of the accused, the commission of reckless
imprudence under Article 365 of the Revised Penal Code is the crime itself.
Hence, the accused shall be held liable for a single crime of reckless
imprudence resulting in homicide, damage through property and slight
physical injuries. Single culpable felony is committed regardless of its
consequence. The consequent death, injuries and damage to property shall
only be considered to impose the proper penalties. This single crime cannot be
split into two for purpose of double prosecution because of the rule on double
jeopardy. (Ivler v. Modesto-San Pedro, G.R. No. 172716, November 17, 2010;
Sevilla vs. People, G.R. No. 194390, August 13, 2014).

4. Malum in se - In People vs. Caballo, G.R. No. 198732, June 10, 2013; Malto
vs. People, G.R. No. 164733, September 21, 2007, the Supreme Court
considered sexual abuse under RA No. 7610 as malum prohibitum simply
because is it punishable under special law. However, Patulot vs. People, G.R.
No. 235071, January 7, 2019 and People vs. Mabunot, G.R. No. 204659,
September 19, 2016, the Supreme Court considered child abuse under RA No.
7610 as malum in se. Accordingly, when the acts complained of are inherently
immoral, they are deemed mala in se, even if they are punished by a special
law. Physical abuse of a child under RA No. 7610 is inherently wrong; hence,
criminal intent on the part of the offender must be clearly established with the
other elements of the crime.

It is submitted that the correct principle is Patulot case and Mabunot

case, and not the Caballo case and Malto case. The Supreme Court itself in
Ysidoro v. People, G.R. No. 192330, November 14, 2012 explained that a
common misconception is that all mala in se crimes are found in the Revised
Penal Code, while all mala prohibita crimes are provided by special penal laws.
The better approach to distinguish between mala in se and mala
prohibita crimes is the determination of the inherent immorality 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. There may be mala in se crimes under special laws, such as plunder
under R.A. No. 7080. Similarly, there may be mala prohibita crimes defined in
the Revised Penal Code, such as technical malversation.

Malversation is malum in se and a culpable felony, which can be

committed by means of dolo and culpa. Hence, public officers, who commits
malversation, can be held liable for violation of Section 3 (e) of RA No. 3019 for
causing damage to the government through evident bad faith (dolo) or gross
inexcusable malversation (culpa). (Pajaro, G.R. Nos. 167860–65, June 17,
2008). On the other hand, technical malversation is malum prohibitum
(Ysidoro v. People, G.R. No. 192330, November 14, 2012), which can be
committed without dolo and culpa. Manifest partiality and gross inexcusable
negligence are not elements of technical malversation. Hence, public officers,
who commits technical malversation, may not be held liable for violation of
Section 3 (e) of RA No. 3019 (Villarosa vs. Hon. Ombudsman, G.R. No. 221418,
January 23, 2019) unless additional circumstance establishes manifest
partiality, evident bad faith and gross inexcusable negligence.

In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund to finance

the regular operations of the municipality, which are not in accordance with
the law creating such fund constitutes technical malversation. However, it was
held that the mere act of using government money to fund a project which is
different from what the law states you have to spend it for does not fall under
the definition of manifest partiality nor gross inexcusable negligence. It must
always be remembered that manifest partiality and gross inexcusable
negligence are not elements in the crime of technical malversation.

5. Mistake of fact - Authorities, who manned a checkpoint because of

information that there are armed rebels on board a vehicle, have the duty to
validate the information, identify them, and to make a bloodless arrest unless
they were placed in real mortal danger. If they shot the suspected vehicle,
which did not stop after have been flagged down and killed the occupants
therein, who turned out be unarmed civilians, they are liable for multiple
homicides. The mistake of fact principle is not applicable since there is
negligence or bad faith on their part (Yapyucu vs. Sandiganbayan, GR No.
120744-46, June 25, 2012).

6. Tetanus - There had been an interval of 22 days between the date of the
stabbing and the date when victim was rushed to hospital, exhibiting symptoms
of tetanus infection. Since infection is severe, he died the next day. The
incubation period of severe tetanus infection is less than 14 days. Hence, he
could not have been infected at the time of the stabbing since that incident
occurred 22 days before the symptoms manifested. The infection was an
efficient intervening cause breaking the connection between the physical
injuries and death. Hence, the crime committed is physical injuries (Villacorta
vs. People, G.R. No. 186412, September 7, 2011). If the victim was infected by
tetanus at the time of stabbing, and the infection is the proximate cause of
death, the crime committed is homicide (People vs. Cornel, G.R. No. L-204, May
16, 1947).

7. Offense punishable under special law - Practicing medicine without license

is an offense punishable under special law but not a felony within the meaning
of Article 4 of RPC. Hence, a quack doctor, who killed his patient while treating
him, is only liable for reckless imprudence resulting in homicide (People vs.
Carmen, G.R. No. 137268, March 26, 2001).

If the victim accidentally killed is the owner, driver or occupant of the

carnapped motor vehicle, the crime committed is qualified carnapping or
carnapping in the aggravated form under Section 3 of RA No. 10883. 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 of owner, driver or
occupant of the vehicle was perpetrated in the course of the commission of the
carnapping (People vs. Mallari, G.R. No. 179041, April 1, 2013).

If the victim accidentally killed is not the owner, driver or occupant of the
carnapped motor vehicle, the crimes committed are simple carnapping and
homicide. The concept of carnapping is the same as that of theft and robbery
(People vs. Sia, G.R. No. 137457, Nov. 21, 2001). Although not punishable
under RPC, it can be treated as a felony within the meaning of Article 4 of RPC
(See: Dimat vs. People, G.R. No. 181184, January 25, 2012). Hence, the
accused is liable for homicide, which is the direct and natural consequence of
simple carnapping.

8. Sense of danger - If a person in committing threat, murder, rape or robbery

creates in the mind of the victim an immediate sense of danger which causes
such person to try to escape, and in so doing he injures himself, the person
who creates such a state of mind is responsible for the resulting injuries or
death (US vs. Valdez, G.R. No. 16486, March 22, 1921; People vs. Toling, G.R.
No. L-27097, January 17, 1975; People vs. Castromero, G.R. No. 118992,
October 9, 1997; People vs. Arpa, G.R. No. L-26789, April 25, 1969).

9. Aberratio ictus – If the crimes committed against the target victim and third
person, who was hit by reason of aberratio ictus, were produced by a single
act, the accused is liable for a complex crime. Thus, single act of throwing a
grenade killing one and injuring another constitutes a complex crime of murder
and attempted murder. (People v. Julio Guillen, G.R. No. L-1477, January 18,
1950) However, the accused is liable for separate crimes despite the application
of the aberratio ictus rule, and not a compound crime in the following cases: a.
If the bullet that killed that target victim is different from the bullet that killed
the third person, who was hit by reason of aberratio ictus (People v. Flora, G.R.
No. 125909, June 23, 2000; People v. Adriano, G.R. No. 205228, July 15,
2015); or b. If the crime committed against the third person, who was hit by
reason of aberratio ictus, is merely a light felony such as slight physical
injuries (People v. Violin, G.R. Nos. 114003-06, January 14, 1997); or c. If the
components of a compound crime are alleged in two different information.
(People v. Umawid, G.R. No. 208719, June 9, 2014); or d. If the crime
committed against the third person, who was hit by reason of aberratio ictus, is
child abuse, which is an offense punishable under special law (Patulot vs.
People, G.R. No. 235071, January 7, 2019)

In Patulot vs. People, G.R. No. 235071, January 7, 2019, accused

consciously poured hot cooking oil from a casserole on CCC, consequently
injuring AAA (3 years old) and BBB (2 months old) burning their skins and
faces. Accused is liable for child abuse involving infliction of physical injury
although there is no intent to degrade, debase or demean the intrinsic worth
and dignity of AAA and BBB as human beings. In fact, the intention of the
accused is merely to inflict injury on CCC but because of aberratio ictus or
mistake of blow, AAA and BBB were also injured. In sum, because of Article 4
of the Revised Penal Code, accused is liable for the wrongful act done (child
abuse against AAA and BBB) although it differs from the wrongful act intended
(physical injuries on CCC).

10. Praeter intentionem - In Wacoy v. People, G.R. No. 213792, June 22,
2015, Perlas-Bernabe, accused merely kicked and punched the victim on the
stomach, which shows that their intention is merely to maltreat, and not to end
his life. The concept of intent to kill as an element of homicide should not be
confused with that of lack of intent to kill, on the basis of which the mitigating
circumstance of praeter intentionem shall be appreciated. Since the victim died
as a consequence of a felonious act of violence employed by the accused, intent
to kill as an element of homicide is conclusively presumed. Even if there is no
intent to kill, the crime is still 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, the mitigating circumstance of praeter
intentionem shall be appreciated since there is no intent to kill.

Under Article 49 of the Revised Penal Code, if the penalty for the
intended crime is different from that of the committed crime, the court shall
impose the penalty for the intended crime or crime actually committed,
whichever is lesser, to be applied in its maximum period. Article 49 applies
only to error in personae. If the crime committed is parricide but the crime
intended is homicide, the penalty for the lesser crime of homicide, which is
reclusion temporal, shall be applied in its maximum period. Article 49 is not
applicable if the penalty for the intended crime is not different from that of the
committed crime. If the crime committed is parricide, but the crime intended is
murder, Article 49, which requires the application of penalty in its maximum
period, is not applicable because both crimes are punished by reclusion
perpetua to death.

Article 49 is neither applicable to aberratio ictus (People v. Guillen, supra)

nor to praeter intentionem. (Wacoy v. People, G.R. No. 213792, June 22, 2015,
Perlas-Bernabe) In aberratio ictus, Article 48 may apply where crimes
committed against the intended victim and third person, who was hit by reason
of aberratio ictus, were produced by a single act. Praeter intentionem may be
appreciated as mitigating circumstance of lack of intent to commit so grave a
wrong than that committed under Article 13.

11. Impossible crime - The crime committed is impossible crime if the offense
sought to be committed is factually or legally impossible. Killing a dead person
is impossible crime because of legal impossibility. Putting the hand inside an
empty pocket with intention to steal a wallet is impossible crime because of
factual impossibility (Intod vs. Court of Appeals, G.R. No. 103119, October 21,
1992). Kidnapping for ransom consummates at the precise moment when the
victim was abducted. Receiving ransom payment is not an element of this
crime. What is important is that the victim was kidnapped for purpose of
ransom. Since the crime is already consummated, there is no basis to say that
it is impossible to commit this crime (People vs. Tan, G.R. No. 95322, March 1,
1993). Moreover, kidnapping is a crime against liberty and not against person
or property. Firing a gun at the unoccupied bedroom with intention to kill a
victim constitutes impossible crime because it is factually impossible to kill a
victim, who was not in the bedroom (Intod vs. Court of Appeals, G.R. No.
103119, October 21, 1992). But throwing grenade at the unoccupied bedroom,
where the victim is supposed to be sleeping, constitutes arson if the bedroom
was burned as a consequence.

a. Gender crime - Gender is an element of all crimes against chastity

except acts of lasciviousness. In seduction and consented acts of
lasciviousness, and abduction, the offender must be a man, while the victim
must be a woman. The offender in adultery must be a married woman, while in
concubinage a married man. If the element of gender is not present in a crime
against chastity, it is impossible to commit this crime (e.g. it is impossible to
commit abduction against a person, who is gay). Despite the impossibility of its
commission, the accused is not liable for impossible crime. To be held liable for
impossible crime, the act which is impossible to commit must constitutes crime
against person or property. However, abduction is a crime against chastity. But
the accused may be held liable for illegal detention.

A person, who has sexual intercourse with a woman not knowing that
she was already dead, is liable for impossible crime since rape is now a crime
against person. However, if he is aware that the woman is already dead, he is
not liable for impossible crime since criminal intent or propensity to rape,
which is the basis of penalizing impossible crime, is wanting.

If the gender element in rape through sexual intercourse is not present,

the offender is not liable for impossible crime. Although it is impossible to
commit rape through sexual intercourse where the victim is a gay, such acts
constitute acts of lasciviousness.

b. Unfunded check - If the check is unfunded, stealing the check and

presenting it for payment with the bank constitute impossible crime. It is
factually impossible to accomplish the crime of qualified theft since the check
is unfunded (Jacinto vs. People, G.R. No. 162540, July 13, 2009). If the check
is funded, stealing the check and presenting it for payment with the bank is
not impossible crime. Even if the accused failed to encash the same due to
external cause such as apprehension by police or stop payment, he will be held
liable for consummated theft. In theft, taking property with intent to gain
consummates the crime. Actual gain is not an element thereof. Thus, failure to
gain will not prevent the consummation of the crime (See: People vs. Seranilla,
G.R. No. L-54090, May 9, 1988).

12. Battered woman syndrome - The essence of this defense of “Battered

Woman Syndrome” as a defense is that battered woman, who suffers from
physical and psychological or emotional distress, is acting under an irresistible
impulse to defend herself although at the time of commission of the crime the
batterer had not yet committed unlawful aggression. That is why “Battered
Woman Syndrome” is a defense notwithstanding the absence of any of the
elements for justifying circumstances of self-defense such as unlawful
aggression (Section 26 of RA No. 9262). This Syndrome refers to a scientifically
defined pattern of psychological and behavioral symptoms found in women
living in battering relationships as a result of cumulative abuse (Section 3).

The three phases of the Battered Woman Syndrome are: (1) the tension-
building phase; (2) the acute battering incident; and (3) the tranquil, loving or
non-violent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004).
The basis of the irresistible impulse to make a defense against the batterer is
the woman’s experiencing two battering episodes.

The elements of Battered Woman Syndrome as a defense are as follows:

(1) the woman is subjected to cumulative abuse by the victim, with whom she
has marital, sexual or dating relationship; and (2) the cumulative abuse or
battery is the act of inflicting physical harm resulting to physical and
psychological or emotional distress. Since the abuse must be cumulative, there
must be at least two episodes involving the infliction of physical harm. If the
first episode is infliction of physical harm and the second episode is verbal
abuse, the accused cannot avail Battered Woman Syndrome as a defense.

13. Imbecility and minority – Mental retardation includes (a) idiot, whose
mental age is two-year old; (b) imbecile, whose mental age is seven-year old; (c)
moron or feebleminded, whose mental age is twelve-year old and (d) borderline
intelligence (People vs. Butiong, G.R. No. 168932, October 19, 2011; People vs.
Bayrante, G.R. No. 188978, June 13, 2012).

For purpose of statutory rape, there is no difference between actual age

and mental age. Having sexual intercourse with the offended party, who is
under 12 years of age, is statutory rape under of Article 266-A (d). The word
“age” in this provision includes chronological age and mental age. Hence,
having sexual intercourse with idiot, imbecile, or feebleminded is statutory
rape under of Article 266-A (d) (People vs. Daniega, G.R. No. 212201, June 28,
2017). However, having sexual intercourse with a person with borderline
intelligence is not statutory rape because his mental age is above 12 years.

Having sexual intercourse with the offended party, who is deprived of

reason, is rape under Article 266-A (b) of the Revised Penal Code. Mental
retardation is within the contemplation of deprivation of reason. Hence, having
sexual intercourse with idiot, imbecile, feebleminded or person with borderline
intelligence is rape of a person deprived of reason under Article 266-A (b)
(People vs. Butiong, G.R. No. 168932, October 19, 2011; People vs. Bayrante,
G.R. No. 188978, June 13, 2012).

Under Section 5 (b) of RA No 7610, when the child subjected to sexual

abuse is under 12 years of age, the perpetrators shall be prosecuted for rape
and acts of lasciviousness under RPC. For purpose of Section 5 (b), there is no
difference between actual age and mental age. Hence, the victim whose actual
age is 12 years old but her mental age is 9 years old, is considered as a victim
under 12 year of age within the contemplation of Section 5 (b) (People vs.
Pusing, G.R. No. 208009, July 11, 2016),

In exempting circumstance, there is a difference between actual age and

mental age. In exempting circumstance of imbecility, what is important is the
mental age of the accused. An idiot, whose mental age is 2 years, and imbecile,
whose mental age is 7 years old (People vs. Butiong, G.R. No. 168932, October
19, 2011, Bersamin) are exempt from criminal liability. A feebleminded, whose
mental age is 12 years old, is not exempt from criminal liability since he is not
an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23, 1997) but he is
entitled to mitigating circumstance of mental illness (People vs. Formigones,
G.R. No. L-3246, November 29, 1950). In exempting circumstance of minority
under Section 6 of RA No. 9344, what is important is the chronological or
actual age of the accused. If the actual age of the accused is 18 years old and
mental age is 9 years old, the exempting circumstance of minority and
imbecility shall not be appreciated (People vs. Roxas, G.R. No. 200793, June
04, 2014).

14. Child in conflict with the law -The rights and privileges of a child in
conflict with the law are as follows:

1. If the accused is 15 years of age or below, minority is an exempting

circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively
presumed. If the child is above 15 years of age, minority is an exempting
circumstance if he acted without discernment, or privilege mitigating
circumstance if he acted with discernment. This privilege mitigating
circumstance shall be appreciated even if minority was not proved during the
trial and that his birth certificate was belatedly presented on appeal (People vs.
Agacer, G.R. No. 177751, January 7, 2013) and even if the penalty is reclusion
perpetua to death (People vs. Ancajas, G.R. No. 199270, October 21, 2015).

2. If the accused is 15 years of age or below but above 12 years, shall be

considered as a neglected child. Neglected child shall be mandatorily placed in
a youth care facility or Bahay Pag-asa in the following instances: (a) If the
child commits serious crimes such as parricide, murder, infanticide, rape,
kidnapping and serious illegal detention with homicide or rape, robbery with
homicide or rape, destructive arson, or carnapping where the driver or
occupant is killed or raped or offenses involving dangerous drugs punishable
by more than 12 years of imprisonment; and (b) In case of repetition of offenses
and the child was previously subjected to a intervention program and his best
interest requires involuntarily commitment.

In case of commission of serious crime, a petition for involuntarily

commitment shall be filed by social worker in court. In case of repetition of
offenses, his parents or guardians shall execute a written authorization for the
voluntary commitment. However, if the child has no parents or guardians or if
they refuse or fail to execute such authorization, the proper petition for
involuntary commitment shall be immediately filed social worker in court; but
the child may be subjected to intensive intervention program supervised by the
local social officer instead of involuntary commitment (Section 20-A and 20-B
of RA 9344 as amended by RA 10630).

3. If the child is found guilty (the exempting circumstance of minority

was not considered), the court shall place him under suspended sentence,
without need of application instead of pronouncing judgment of conviction
(Section 38 of RA 9344). The law makes no distinction as to the nature of
offense by the child. The Senate debate discloses that the suspension is
applicable to heinous crime (People vs. Jacinto, G.R. No. 182239, March 16,
2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015).

An accused, who is under 18 years of age at the time of the commission

of the crime, is a child in conflict with the law. He will not be deprived of
privileges under the law even though he reaches age of majority at time of
rendition of judgment. Exception: While Section 38 of RA 9344 provides
suspension of sentence can still be applied even if the child is already 18 years
of age at the time of conviction. However, Section 40 limits the suspension of
sentence until the child reaches the age of 21 (People vs. Gambao, GR No.
172707, October 01, 2013; People vs. Ancajas, G.R. No. 199270, October 21,
2015; Hubilla vs. People, G.R. No. 176102, November 26, 2014).

4. If the accused is an adult, application for probation must be filed

within the period of perfecting an appeal (Section 4 of PD No. 968 or Probation
Law). However, the accused is a child in conflict with the law, application for
probation may be filed at any time (Section 42 of RA No. 9344). In sum, it can
be filed even beyond the period of perfecting an appeal or even during the
pendency of an appeal.

Under Section 9 of PD 968, one, who is sentenced to suffer a penalty (or

maximum indeterminate penalty) of more than 6 years, is not qualified to apply
for probation. However, under Section 70 of RA No. 9165, a first time minor
offender can apply for probation for the crime of possession or use of dangerous
drug even if the penalty is higher than 6 years of imprisonment. But Section 70
of RA 9165 is not applicable sale of dangerous drugs. Section 24 of RA No.
9165 disqualifies drug traffickers and pushers for applying for probations
although the accused is a minor. The law considers the users and possessors
of illegal drugs as victims while the drug traffickers and pushers as predators
(Padua vs. People, G.R. No. 168546, July 23, 2008).

5. The child in conflict with the law may, after conviction and upon order
of the court, be made to serve his sentence, in lieu of confinement in a regular
penal institution, in an agricultural camp and other training facilities in
accordance with Section 51 of RA No. 9344 (People vs. Arpon, G.R. No. 183563,
December 14, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015;
Hubilla vs. People, G.R. No. 176102, November 26, 2014).

6. A convict is entitled to a full or 4/5 credit of his preventive

imprisonment (Article 29 of RPC). However, if the convict is a child in conflict
with the law, he shall be credited in the services of his sentence the full time
spent in actual commitment and detention (Section 41, RA 9344; Atizado vs.
People, G.R. No. 173822, October 13, 2010).   

15. Status offense – Status offenses such as curfew violation refers to offenses
which discriminate only against a child, while an adult does not suffer any
penalty for committing similar acts (Section 3 of RA No. 9344). In sum, a status
offense is a crime where minority of the offender is an element. A child shall
not be punished for committing a status offense (Section 57). Under Section
57-A, local ordinances on status offenses shall be for the protection of children.
For committing status offense, children recorded as a child at risk shall be
brought to their residence or to any barangay official at the barangay hall to be
released to the custody of their parents instead of being penalized.

16. Exempting circumstance of relationship - The absolutory cause of

relationship under Article 332 of RPC applies to theft, swindling and malicious
mischief. It does not apply to theft through falsification or estafa through
falsification. It includes step-relationship and in-laws relationship. There are
two views on whether death of his wife dissolves the relationship by affinity of
the husband with his mother-in-law for purpose of absolutory cause. The first
holds that relationship by affinity terminates after the death of the deceased
spouse, while the second maintains that relationship continues. The principle
of pro reo calls for the adoption of the continuing affinity view because it is
more favorable to the accused (Intestate estate of Gonzales vs. People, G.R. No.
181409, February 11, 2010). The term “spouses” in Article 332 embraces
common-law spouses. The basis of this ruling is the rule on co-ownership over
properties by common-law spouses (People vs. Constantino, No. 01897-CR,
September 6, 1963, 60 O.G. 3603).

17. Aggravating circumstances - The aggravating circumstance of dwelling

should be taken into account. Although the triggerman fired the shot from
outside the house, his victim was inside. For this circumstance to be
considered it is not necessary that the accused should have actually entered
the dwelling of the victim to commit the offense; it is enough that the victim
was attacked inside his own house, although the assailant may have devised
means to perpetrate the assault from without (People vs. Tirso, G.R. No.
214757, March 29, 2017).

In robbery with violence and intimidation against persons, dwelling is

aggravating because in this class of robbery, the crime may be committed
without the necessity of trespassing the sanctity of the offended party's
house. It is considered an aggravating circumstance primarily because of the
sanctity of privacy that the law accords to the human abode (People vs.
Bringcula, G.R. No. 226400, January 24, 2018).

18. Exploitation of minor – The special aggravating circumstance of

exploitation of minor under RA No. 9344is present if the accused makes use,
takes advantage of, or profits from the use of children, or abuses his authority
over the child or takes advantage of the vulnerabilities of the child with abuse
of confidence or induce, threaten or instigate the commission of the crime. The
concept of exploitation of children is comprehensive enough to cover the
circumstance of with the aid of minor under 15 years of age under RPC.

19. Seniority - Under RA No. 7432 as amended RA No. 9994, a senior

citizen or elderly refers to any resident citizen of the Philippines at least sixty
(60) years old. Thus, on the 60th birthday of resident citizen, he becomes a
senior citizen under the law. However, the concept of seniority in criminal law
is different from that under RA No. 7432. Under Article 13 (2) of the Revised
Penal Code, the mitigating circumstance of seniority is present if the accused is
over 70 years of age. Thus, on his 70th birthday, an offender is not yet a senior
citizen; he becomes a senior citizen after his 70 th birthday. However, it must be
noted that seniority as a mitigating circumstance can only be considered if the
offender is over 70 years of age at the time of the commission of the crime and
not at the time of the promulgation of the decision (People vs. Reyes, G.R. No.
177105-06, August 12, 2010).

There is a view that a person, who is over 70 years of age, is immune

from criminal liability. This view has no basis under the law.

There are two kinds of exempting circumstance, to wit: general

exempting circumstances and specific exempting circumstances. General
exempting circumstance can be appreciated in any crime even if it punishable
under special law in favor of any offender, whether principal, accomplice or
accessory. General exempting circumstances are those listed in Article 12 of
the Revised Penal Code such insanity and Section 6 of RA No. 9344 on
minority. Specific exempting can be appreciated in a specific crime in favor of
specific offender. The following are specific exempting circumstances:
relationship in favor of accessory by destroying or concealing the body,
instrument or effects of the crime or by helping the principal to escape under
certain conditions; or (Article 20) in theft, malicious mischief or swindling;
(Article 332) exceptional circumstance in favor of one who inflicted slight or
less serious physical injuries upon his spouse or daughter; (Article 247)
minority in prostitution, sniffing rugby, mendicancy, or status offense e.g.
parental disobedience, curfew violation or truancy; and (Sections 57 and 58 of
RA No. 9344) being a trafficked victim in prostitution, working without permit,
rebellion or any other crime committed in relation to trafficking in person or in
obedience to the order made by the trafficker in relation thereto (Section 17 of
RA No 9208).

There is nothing in the Revised Penal Code or in any other laws that
exempt a senior citizen from criminal liability. A senior citizen is entitled to
privileges under the law, custom and tradition. However, committing a crime is
not a privilege to which a senior citizen is entitled. However, According to
Justice Florenz Regalado, if the accused is suffering from senility amounting to
insanity at the time of the commission of the crime, he is exempt from criminal
liability due to the circumstance of insanity and not seniority. However, Article
13 (2) of the Code, seniority is only a mitigating circumstance. In sum, the
penalty imposable to a senior citizen shall be reduced.

There is a view that a prisoner, who is over 70 years of age, should be

released through a pardon. This view has no constitutional basis.

Under the Constitution, the President has the absolute authority to

pardon or not the pardon an offender subject only to three limitations, to wit:
(1) pardon must be made after conviction of the accused by final judgement; (2)
impeachable offense cannot be pardoned; and (3) election offense without
favorable recommendation of the Comelec cannot be pardoned.

These constitutional limitations are exclusive. In Risos-vidal vs. Lim,

G.R. No. 206666, January 21, 2015, the Supreme Court, En Banc, said that
the pardoning power is discretionary in the President and may not be interfered
with by Congress or the Court, except only when it exceeds the limits provided
for by the Constitution

Under Article 160 of the Revised Penal Code, a quasi-recidivist shall be

pardoned at the age of 70 years provided that he is not a habitual criminal and
has already served out his original sentence, or completed it after reaching said
age. It should be noted that the pardonable crime in Article 160 pertains to
that committed while he was serving his sentence in prison as a convicted
prisoner, and not to the crime covered by his original sentence committed by
him before he was detained as a convicted prisoner.

However, Article 160 of the Code is an interference to the absolute and

discretionary pardoning power of the President, which is a violation of the non-
interference principle in the case of Risos-vidal vs. Lim, supra. According to
former CA Justice Albert Mariano, the second paragraph of Article 160 on
pardon is unconstitutional.

There is a view that the sentence of a convict, who is over 70 years of

age, should be suspended. This view has no basis under the law.

Under Article 13 (b) of the Revised Penal Code, the offender is under 18
years of age or over 70 years; in the case of the minor, he shall be proceeded
against in accordance with the provisions of Article 80. Article 80 of the
Revised Penal Code, which is now replaced by RA No. 9344, is a provision on
suspension of sentence of minor delinquents. In sum, the suspension of
sentence rule is available only to a child in conflict with the law. There is no
rule on suspension of sentence by reason of seniority.

There is a view that an accused, who is over 70 years of age, is entitled to

post bail even though the crime is non-bailable for being punishable by
reclusion perpetua because of the case of Enrile. This view has no
jurisprudential basis. In Juan Ponce Enrile vs. Sandiganbayan, G.R. No.
213847, August 18, 2015, the Supreme Court allowed Enrile to post bail for a
non-bailable crime of plunder punishable by reclusion perpetua because his
social and political standing and his having immediately surrendered to the
authorities upon his being charged in court indicate that the risk of his flight
or escape from this jurisdiction is highly unlikely, and due to his currently
fragile state of health. In sum, the Supreme Considered three circumstances in
allowing Enrile to post bail, to wit: (1) his social and political standing; (2)
voluntary surrender; and (3) his fragile health.

Since under the Constitution, one can only post bail for a crime
punishable by reclusion perpetua if the evidence of guilt is not strong, it is
submitted that to apply the Enrile principle, the circumstances of a case must
be similar to those in the case of Enrile. The fact that an accused is over 70
year of age is not enough to allow him to post bail for a crime punishable by
reclusion perpetua unless the following circumstances concurred:
extraordinary social and political standing, voluntary surrender and fragile
health.
20. Conspiracy - B.P. Blg. 22 does not expressly proscribe the supplementary
application of the provisions RPC including the rule on conspiracy.  Hence,
such rule may be applied supplementarily. Thus, a non-issuer of bum check
can be held liable for violation of BP Blg. 22 on the basis of conspiracy.
(Ladonga vs. People, G.R. No. 141066, February 17, 2005). The principle of
conspiracy may be applied to RA No. 9262. Thus, a person (such as mother-in-
law), who has no marital, sexual or dating relationship with the victim, can be
held liable for violence against woman on the basis of conspiracy (Go-Tan vs.
Go, G.R. No. 168852, September 30, 2008)  

If there is conspiracy, the act of the public officer in violating RA No.

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

While the primary offender in violation of RA No. 3019 and plunder are
public officers, private individuals may also be held liable for the same if they
are found to have conspired with said officers in committing the same. This
proceeds from the fundamental principle that in cases of conspiracy, the act of
one is the act of all. In this case, Janet Napoles engaged in the illegal
hemorrhaging of Senator Enrile's PDAF. Thus, they are rightfully charged as a
co-conspirator for corruption and plunder. (Napoles vs. Carpio-Morales, G.R.
Nos. 213542-43, March 15, 2016, Perlas-Bernabe)

Mayor, treasurer and planning coordinator approved the overpayments

in favor of a private individual for the construction of public market. The public
officers caused undue injury to the government through manifest partiality and
evident bad faith in violation of Section 3 (e) of RA No. 3019. The private
individual, who was overpaid, is also liable on the basis of conspiracy and Go
vs. Fifth Division of the Sandiganbayan (Santillano vs. People, G.R. Nos.
175045-46, March 03, 2010; Uyboco vs. People, G.R. No. 211703, December
10, 2014).

21. Fencing – In fencing, the property, which the accused possesses with
intent to gain, must be derived from the proceeds of theft or robbery (Ong vs.
People, GR No. 190475, April 10, 2013). The concept of carnapping is the same
as that of theft or robbery (People vs. Sia, G.R. No. 137457, November 21,
2001). Thus, carnapping can be considered as within the contemplation of the
word “theft” or “robbery” in PD No. 1612 (Dimat vs. People, G.R. No. 181184,
January 25, 2012). If the property is derived from the proceeds of malversation
or estafa, fencing is not committed. But the accused can be held liable as an
accessory if he profited or assisted other to profit from this misappropriated
property.

Actual knowledge that the property is stolen is not required. Fencing is

committed is the accused should have known that the property is stolen taken
into consideration the attending circumstances such as (1) the price of the
property is so cheap; (2) expensive jewelry is being offered for sale at midnight
in a street; (3) accused knew that the car he bought was not properly
documented (Dimat vs. People, supra); or (4) new tires are being peddled in the
streets by an unknown seller (Ong vs. People, supra). Furthermore, mere
possession of stolen property shall be prima facie evidence of fencing (Section 6
of PD No. 1612).

If the information alleged that the accused “knows” that the property is
stolen, he cannot be convicted of fencing on the ground that he “should have
known” that the same was derived from the proceeds of theft because of his
constitutional right to be informed (Lim vs. People, G.R. No. 211977, October
12, 2016).

In Lim vs. People, G.R. No. 211977, October 12, 2016, the clearance
stated in Section 6 of PD No. 1612 is only required if several conditions, are
met: first, that the person, store, establishment or entity is in the business of
buying and selling of any good, articles item object, or anything of
value; second, that such thing of value was obtained from an unlicensed dealer
or supplier thereof; and third, that such thing of value is to be offered for sale
to the public. In the present case, the first and third requisites were not met.
Nowhere was it established that petitioner was engaged in the business of buy
and sell. Neither was the prosecution able to establish that petitioner intended
to sell or was actually selling the subject grader to the public.
22. Obstruction of justice – Obstruction of justice can only be committed by a
person other than the one being investigated or tried in a criminal proceeding.
Although this is not expressly required in PD No. 1829 to make one liable for
obstruction of justice, a principal himself cannot be held liable for obstruction
of justice (Angeles vs. Gaite, G.R No. 165276, November 25, 2009).

The criminal actor, who threw the body of murdered victim into the river
to destroy the corpus delicti, is liable for murder qualified by the circumstance
of employment of means to afford impunity. The one who assisted in in
throwing the body is liable as an accessory to murder for destroying the body of
the crime to prevent its discovery (People vs. Devaras, G.R. Nos. 100938-39,
December 15, 1993)or a principal in the crime of obstruction of justice for
destroying it to impair its availability as evidence in a criminal proceeding.

The accused cannot be prosecuted both as an accessory for murder and

as principal for obstruction of justice. The penalty prescribed for obstruction of
justice under PD No. 1829 is prision correccional in its maximum period
unless other law prescribed a higher penalty. Thus, the offender may be
prosecuted for murder as accessory with the penalty of prision mayor or for
obstruction of justice as principal also with the penalty of prision mayor, since
this penalty is higher than that prescribed under PD No. 1829. The intention of
the law in prescribing a fixed penalty or that provided by other law such as
RPC, whichever is higher, is not to prosecute the offender for obstruction of
justice and for other crime arising from the same act such as destroying the
body of the crime.

After the discovery of illegal possession of lumber, the accused unlawfully

took the truck used to commit the crime from the authorities. He is not liable
as an accessory since he did not conceal the instrument of the crime for the
purpose of preventing the discovery thereof. Crime was already discovered
when the concealment was made. However, he is liable for obstruction of
justice for concealing the truck to impair its availability as evidence in the
criminal proceeding for illegal possession of lumber (Padiernos vs. People, G.R.
No. 181111, August 17, 2015).

To be held liable as an accessory, the person harbored, concealed, or

assisted to escape must be principal of the crime and the crime committed
must be treason, parricide, murder, or an attempt to take the life of the Chief
Executive, or other crime where act was committed with abuse of public function
or the principal is a habitual delinquent. To be held liable as a principal in
obstruction of justice, the one harbored, concealed, or assisted to escape is
any person (such as principal or accomplice and the crime committed is “any
offense under existing law.”
 The exempting circumstance of relationship under Article 20 of RPC can
be appreciated in favor of an accessory to a felony but not in favor of an
accused in the crime of obstruction of justice since he is being prosecuted as
principal and not as an accessory.

Light felony is punishable except when the accused is merely an

accessory (Article 16 of RPC) or when it is at the attempted or frustrated stage
unless it is a crime against property or person (Article 7). However, obstruction
of justice can be committed even though the crime under investigation is a
light felony.

An accused can be convicted as an accessory to a felony although the

principal was not convicted because the latter was at large, unidentified or
dead (Vino vs. People, G.R. No. 84163, October 19, 1989). The corresponding
responsibilities of the principal, accomplice, and accessory are distinct from
each other. As long as the commission of the offense can be duly established in
evidence, the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal (People vs. Bayabos, G.R. No.
171222, February 18, 2015).

23. Special complex crime –Raping the victim or inserting instrument in her
anal orifice after treacherously inflicting mortal wounds is not a special
complex crime of rape with homicide because the original design of the victim
is kill and not to rape the victim. The crime committed is murder qualified by
treachery and rape shall be regarded either as ignominy or cruelty (People vs.
Laspardas, G.R. No. L-46146, Oct. 23, 1979) or sexual assault shall be treated
as cruelty (People vs. Bernabe, G.R. No. 185726, October 16, 2009).

a. Special rule for kidnapping with homicide - Where the person

kidnapped is killed in the course of the detention, regardless of whether the
killing was purposely sought or was merely an afterthought, the accused is
liable for a special complex crime of kidnapping with homicide (People vs.
Mercado, G.R. No. 116239, November 29, 2000; People vs. Ramos, G.R. No.
118570, October 12, 1998; People vs. Larranaga, 138874-75, February 3,
2004; People vs. Montanir, GR No. 187534, April 04, 2011; People vs.
Dionaldo, G.R. No. 207949, July 23, 2014). However, if the derivation of liberty
is just incidental to the transportation of the victim to the place where he will
be executed, the crime is murder. Kidnapping with homicide is not committed
because of lack of intent to deprive liberty (People vs. Estacio Jr., G.R.
No.  171655, July 22, 2009).

b. Doctrine of absorption - In robbery with homicide, all other felonies

such as rape, intentional mutilation, usurpation of authority, or direct assault
with attempted homicide are integrated into this special complex crime. This
special complex crime is committed as long as death results by reason or on
occasion or robbery without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission of the crime(People
vs. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No.
202124, April 05, 2016).

c. Homicide component – A special complex crime of robbery with

homicide takes place when a homicide is committed either by reason, or on the
occasion, of the robbery. To sustain a conviction for robbery with homicide, the
prosecution must prove the following elements: (1) the taking of personal
property belonging to another; (2) with intent to gain; (3) with the use of
violence or intimidation against a person; and (4) on the occasion or by reason
of the robbery, the crime of homicide, as used in its generic sense, was
committed. A conviction requires certitude that the robbery is the main
purpose, and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking of human
life but the killing may occur before, during or after the robbery. Homicide is
said to have been committed by reason or on occasion of robbery if, for
instance, it was committed: (a) to facilitate the robbery or the escape of the
culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses in the
commission of the crime (People vs. Balute, G.R. No. 212932, January 21,
2015, Perlas-Bernabe)

In robbery with homicide, it is immaterial that the victim of homicide is a

bystander (People vs. Barut, G.R. No. L-42666 March 13, 1979), a responding
police (People vs. Pelagio, G.R. No. L-16177, May 24, 1967) or one of the
robbers (People vs. De Leon, GR No. 179943, June 26, 2009;People vs.
Jugueta, G.R. No. 202124, April 05, 2016).

The phrase “by reason of the rape” obviously conveys the notion that

the killing is due to the rape, which is the crime the offender originally designed
to commit. The victim of the rape is also the victim of the killing.  In contrast,
the phrase “on the occasion of the rape” as shown by Senate deliberations
refers to a killing that occurs immediately before or after,or during the
commission itself of the rape, where the victim of the homicide may be a person
other than the rape victim (People vs. Villaflores, G.R. No.  184926, April 11,
2012; People vs. Laog, G.R. No. 178321, October 5, 2011).

In robbery with homicide, it is immaterial that victim is killed by the

responding police and not by the robber (People vs. Ombao, G.R. No. L-30492,
February 26, 1981). But in attempted robbery with homicide, the offender must
be guilty of both crimes. Hence, attempted robbery with homicide is not
committed where the victim was killed by a co-passenger and not by the robber
(People vs. Manalili, G.R. No. 121671, August 14, 1998).

Ordinarily, homicide means killing another person. In sum, the person

responsible for the death of the victim must be the offender. But in the case of
People vs. Arpa, G.R. No. L-26789, April 25, 1969, the victim himself, who
jumped from boat, is responsible for his own death, and yet, the SC convicted
the accused of robbery with homicide. In other words, death caused by the
victim himself is considered as homicide, which is a component of robbery with
homicide. Hence, suicide or death caused by the victim herself can be
considered as homicide as a component of special complex crime of rape with
homicide.

d. Violence or intimidation in taking the property - If the taking of

property is not committed by means of violence or intimidation, Article 294 of
RPC is not applicable. Taking without violence or intimidation constitutes theft.
If after the taking of property by means of violence or intimidation, the robber
killed a responding police officer, the former is liable for robbery with homicide
(People vs. Pelagio, G.R. No. L-16177, May 24, 1967). If after the taking of the
roasters without violence or intimidation, the thief killed responding police
officer, he is liable for theft and direct assault with homicide (People vs.
Jaranilla, G.R. No. L-28547, February 22, 1974). If after the snatching of the
complainant’s bag without violence or intimidation, a co-robber crashed the
getaway motorcycle and died, the accused is only liable for theft (People vs.
Concepcion, G.R. No. 200922, July 18, 2012).

e. Direct connection - After consummation of robbery, passengers

reported the matter to the police authorities. During the manhunt operation,
one of the police officers was killed by a robbery. The crime committed is not
robbery with homicide since the connection between the two crimes was “not a
direct connection" (People vs. Quemeggen, G.R. No. 178205, July 27, 2009).

f. Collective responsibility - When a homicide takes place by reason or

on the occasion of the robbery, all those who took part shall be guilty of the
special complex crime of robbery with homicide whether or not they actually
participated in the killing, unless there is proof that they had endeavored to
prevent the killing (Crisostomo vs. People, G.R. No. 171526 September 1, 2010,
; People vs. Bongos, G.R. No. 227698, January 31, 2018, Justice Peralta).

24. Occupation of real property - In simple robbery under Article 294 of RPC,
violence and intimidation is employed to take property. In occupation of real
property under Article 312, violence or intimidation is employed to occupy the
real property. If the accused has already occupied the house of the
complainant, and he used violence or intimidation to prevent the said owner
from reoccupying the property, the crime committed is not occupation of real
property. The accused may be held liable of grave threat, grave coercion or
discharge of firearm depending upon the circumstance of the case.

24. Robbery by means of intimidation - In robbery with intimidation of

persons, the intimidation consists in creating fear in the mind of a person in
view of a risk or evil that may be impending, real or imagined. Such fear of
injury to person or property must continue to operate in the mind of the victim
at the time of the delivery of the money. Threat of prosecution and confiscation
of the logs by DENR officers is an intimidation within the meaning of robbery
(Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009).

25. Robbery by using force upon thing - Breaking the window of a house and
taking property inside without entering constitutes theft. Breaking the window
is not a circumstance that will qualify the taking into robbery by using force
upon things since this crime requires that the breaking of window is a means
to enter the building (People vs. Adorno, CA 40 O.G. 567; People vs. Jaranilla,
G.R. No. L-28547, February 22, 1974). Breaking the window to commit theft is
an ordinary aggravating circumstance.

Using picklock to open a locked cabinet and taking property therein is

not robbery by using force upon thing. To constitute robbery by using force
upon thing, the picklock must be used to open the building and not merely a
locked furniture (US vs. Macamay, G.R. No. 11952, September 25, 1917).
Entrusted key is not a false key in robbery by using force upon thing.

A store used as a house is not a dwelling for purpose of appreciating the

aggravating circumstance of disregard of dwelling. A dwelling must be a
shelter exclusively used for rest and comfort (US vs. Baguio, G.R. No. 5332,
October 4, 1909). However, for purpose of trespass to dwelling and robbery by
using force upon thing, a store used as a house is a dwelling or inhabited
house (People vs. Tubog, G.R. No. L-26284, Nov. 17, 1926; People vs.
Lamahang, G.R. No. 43530, August 3, 1935). For purpose of robbery by using
for upon thing committed inside the store located at the first floor while the
second floor is used as a dwelling, a store shall be considered as a dependency
of an inhabited house (U.S. vs. Ventura, G.R. No. L-13715, January 22, 1919).
For purpose of robbery by using for upon thing committed inside the store,
which is not used as a house, the store shall be considered as a private
building (Marquez vs. People, G.R. No. 181138 December 3, 2012).

Under Article 299 or Article 302, entry into the building is an essential 
element of robbery by using force upon anything. Such entry can be made by 
actual force such as breaking the window or constructive force such as by me
ans of simulation of authority or using false name. Using picklock or similar t
ools to gain entry into a building is also a mode of committing robbery by usin
g force upon anything under these provisions.  

However, motor vehicle is not a building within the contemplation of Art
icle 299 or 302 (See: Revised Penal Code, Book 2, CA Justice Luis Reyes;
unless the car has comfort room, kitchen and bed).  Thus, taking car stereo
after breaking the window of the
motor vehicle is not robbery by using force upon anything.  
 Such taking constitutes of the crime of simple theft under Article 309 of 
the Revised Penal Code. In People vs. Jaranilla, L-28547, February 24, 1974,
taking the roaster after breaking the chicken coop, which is not a building, is
simple theft.

26. Complex crime of two robberies - In Sebastian case, when the elements
of both robbery by means of violence and intimidation and robbery by using
force upon thing are present, the accused shall be held liable of the former
since the controlling qualification is the violence and intimidation. However,
the penalty for robbery in inhabited house if the robber is armed is graver than
simple robbery. Hence, by hurting the victim, the offender shall be penalized
with a lighter penalty. Since Sebastian principle defies logic and reason, People
vs. Napolis, G.R. No. L-28865, February 28, 1972 abandoned it. Under the
present rule, when the elements of both robbery by means of violence and
intimidation and robbery by using force upon thing are present, the crime is
a complex one under Article 48 of said Code. Hence, the penalty for robbery in
inhabited house shall be imposed in its maximum period (People vs. Disney,
G.R. No. L-41336, February 18, 1983; Fransdilla vs. People, GR No. 197562,
April 20, 2015). If the entry into the dwelling is without force upon thing, and
the property was taken by means of violence or intimidation, the crime
committed is robbery by means of violence or intimidation with aggravating
circumstance of disregard of dwelling (People vs. Tejero, G.R. No. 128892 June
21, 1999; People vs. Evangelio, G.R. No. 181902, August 31, 2011). When the
elements of both robbery with homicide and robbery by using force upon thing
(unlawful entry) are present, the former shall absorb the latter. In sum, robbery
by using force upon thing committed on occasion of robbery by means of
violence or intimidation shall be integrated into the special complex crime of
robbery with homicide (People vs. De Leon, GR No. 179943, June 26, 2009;
People vs. Jugueta, G.R. No. 202124, April 05, 2016). But aggravating
circumstances of disregard of dwelling and unlawful entry shall be both
appreciated (People vs. Lamosa, G.R. No. 74291-93, May 23, 1989).

27. Compound crime - The single act of rolling the hand grenade on the floor
of the gymnasium which resulted in the death of victims constituted a
compound crime of multiple murders (People vs. Mores, GR No. 189846, June
26, 2013). Where the use of grenade render the victim defenseless, “use of
explosives” shall be considered as a qualifying circumstance because this is the
principal mode of attack. Thus, treachery will be relegated merely as a generic
aggravating circumstance (People vs. Comadre, et al., G.R. No. 153559, June 8,
2004). The single act of running over the victims with a van constitutes
compound crime of multiple murders (People vs. Punzalan, Jr., G.R. No.
199892, December 10, 2012).

a. Single act treated as several acts - Single act of pressing the trigger
of Thompson or armalite is treated as several acts as many as there are bullets
fired from gun. Because of special mechanism of Thompson, the single act of
pressing its trigger will cause the continuous firing of bullets. Thus, accused is
liable as many homicides as there are victims (People vs. Desierto, (C.A.) 45
O.G. 4542; People vs. Sanchez, G.R. No. 131116, August, 27, 1999; People vs.
Tabaco, G.R. Nos. 100382-100385 March 19, 1997; People v. Vargas, Jr., G.R.
No. 86728, April 6, 1990; People vs. Bermas, G.R. Nos. 76416 and 94312 July
5, 1999).

b. Variance rule - The body of the information charged the accused of

compound crime with murder and attempted murder since two victims were hit
by a single shot. The evidence shows that murder and attempted murder are
separate crimes since the two victims were hit by several shot. Under the
variance rule, if the crime alleged in the information varies with the crime
proven with evidence, the accused shall be convicted of the crime alleged or
proven whichever the lesser. Thus, accused shall be convicted of complex
crime, which is lesser compared to two crimes (People vs. Bernardo, GR No.
198789, June 03, 2013).
 c. Several acts - Several acts in killing several victims do not constitute
a compound crime. Article 48 requires a single act constituting two or more
crimes (People vs. Toling, G.R. No. L-27097, January 17, 1975). Exceptions:
Several acts in killing several victims under a single criminal impulse (People vs.
Lawas, L-7618-20, June 30, 1955) or under single criminal purpose (People vs.
Abella, G.R. No. L-32205 August 31, 1979) shall be considered as a single act.
Hence, it is a compound crime.

The “single criminal impulse rule” under the Lawas doctrine is more of an
exception than the general rule (People vs. Remollino, G.R. No. L-14008,
September 30, 1960). Article 48 on compound crime speaks of single act, but
not single criminal impulse (People vs. Pineda, G.R. No. L-26222, July 21,
1967). In Lawas case, the SC was merely forced to apply Article 48 because of
the impossibility of ascertaining the number of persons killed by each accused
(People vs. Nelmida, G.R. No. 184500. September 11, 2012). Thus, the Lawas
doctrine should not be applied if there is conspiracy since the number of
victims actually killed by each conspirator is not anymore material if there is
conspiracy (People vs. Elarcosa, G.R. No. 186539, June 29, 2010).

The “single criminal purpose rule” under the Abella case was adopted in
consideration of the plight of the prisoners; hence, it is only applicable if
killings were commit by prisoners against their fellow prisoners (People vs.
Pincalin, G.R. No. L-38755, January 22, 1981; People vs. Nelmida, G.R. No.
184500, September 11, 2012

28. Complex crime proper - Stabbing after the rape is a separate crime of
frustrated homicide. This is not a complex crime proper since the latter is not
necessary to commit the former (People vs. Isla, G.R. No. 199875, November
21, 2012).

a. Abduction and rape - If the main objective of the accused is to rape

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

If forcible abduction is a necessary means to commit rape, this is a

complex crime proper under Article 48 of RPC. However, if multiple rapes were
committed, forcible abduction will be considered as a necessary means to
commit the first rape but not the subsequent rape. Hence, with respect to the
first rape, the crime committed is complex crime of rape though forcible
abduction while the subsequent rapes will be treated as separate crimes
(People vs. Jose, G.R. No. L-28232, February 6, 1971; People vs. Buhos, G.R.
No. L-40995, June 25, 1980; People vs. Tami, G.R. Nos. 101801-03, May 02,
1995; People vs. Garcia, G.R. No. 141125, February 28, 2002, En Banc; People
vs. Amaro, G.R. No. 199100, July 18, 2014).
As a rule, forcible abduction is an indispensable means to commit rape;
hence, the latter absorbs the former. However, if the victim was brought in a
house or motel or in a place with considerable distance from the place where
she was abducted, forcible abduction will be considered as a necessary means
to commit rape; hence, the crime committed is complex crime proper.

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

The difference between rape through forcible abduction and kidnapping

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

If the accused was molesting the victim immediately upon abduction,

that is proof that abduction is committed with lewd design (People vs. Jose,
supra). After eating the food given by accused, the victim became dizzy and
thereafter, she passed out. When she regained consciousness, she notices that
she and accused are naked inside a room. She was raped and detained for 6
days. The crime committed is rape through forcible abduction (People vs.
Amaro, G.R. No. 199100, July 18, 2014).

29. Complex crime and special complex crime - In a composite crime, the
composition of the offenses is fixed by law, but in a complex or compound
crime, the combination of the offenses is not specified but generalized, that is,
grave and/or less grave, or one offense being the necessary means to commit
the other. In a composite crime, the penalty for the specified combination of
crimes is specific, but in a complex or compound crime the penalty is that
corresponding to the most serious offense, to be imposed in the maximum
period. A light felony that accompanies the commission of a complex or
compound crime may be made the subject of a separate information, but a
light felony that accompanies a composite crime is absorbed (People vs.
Esugon, G.R. No. 195244, June 22, 2015).

30. Doctrine of absorption - If murder, kidnapping or arson committed in

furtherance of rebellion, they will be divested of their character as common
crimes and will assume the political complexion of rebellion. Hence, rebellion
absorbs these crimes (People vs. Geronimo, G.R. No. L-8936, October 23, 1956;
People vs. Hernandez, G.R. Nos. L-6025-26, July 18, 1956; Enrile vs. Salazar,
G.R. No. 92163 June 5, 1990). Doctrine of absorption is applicable to coup
d’etat for being a political crime because the purpose of coup plotter is to seize
or diminish state power (Gonzales vs. Abaya, G.R. No. 164007, August 8, 2006,
concurring opinion by Justice Callejo).

Membership in CPP-NPA alone will not establish political motivation

behind the killing for purpose of convicting the killers for rebellion (People vs.
Lovedioro, G.R. No. 112235, November 29, 1995; People vs. Solongan, G.R. No.
137182, April 24, 2003). But membership in a liquidation squad and killing a
government officer is sufficient to establish political motivation (People v.
Dasig, G.R. No. 100231. April 28, 1993).

RA No. 6968 eliminated the phrases "engaging in war against the forces
of the government", "committing serious violence" and “destroying property” in
Article 135 of RPC. These modes of committing rebellion deleted by RA No.
6968 were used by the SC in justifying the doctrine of absorption. The
amendment of Article 135 does not affect the accepted concept of rebellion and
these “overt acts of violence” are deemed “subsumed” in the provision on public
and armed uprising, which is an element of rebellion in Article 134 (Regalado).
Hence, the doctrine of absorption is still good. The incidents in Lovedioro case,
and Solongan case happened after RA No. 6968, and yet, the SC is still
applying the doctrine of absorption. In Lagman vs. Medeldea, G.R. No. 231658,
July 04, 2017, the Supreme Court, En Banc, has recognized the absorption
doctrine in rebellion.

a. Sedition - Doctrine of absorption is not applicable to sedition. There is

neither law nor jurisprudence which can allow the absorption of murder and
kidnapping by sedition. The absorption principle in the cases of Hernandez and
Geronimo cannot properly be invoked as authority since those two cases
involved rebellion and not sedition (People vs. Hadji, G.R. No. L-12686, October
24, 1963). Moreover, public and tumultuous uprising for political or social
purpose, which is the essence of sedition, does not require killings, burning of
properties and extortions.

Senator Antonio Trillanes and other detention prisoners walked-out from

the courtroom during the trial of the Oakwood mutiny case on November 29,
2007. Escorted by armed supporters and civilians including former Vice-
President Teofisto Guingona, Jr., they proceeded to Manila Peninsula Hotel and
forcibly occupied it. They set up a command center at the second floor of the
hotel and made a public statement, to wit: “We take the fateful step of removing
Mrs. Gloria Macapagal-Arroyo from the Presidency and undertake the formation
of a new government.” Former Vice-President Guingona uttered publicly “This
is like Edsa”.

The participants of the Manila Peninsula incident including Senator

Trillanes, was charged for rebellion. However, there is an issue on whether or
not walking-out from the court room to Manila Peninsula and the appeal to the
public to repeat the Edsa Revolution constitutes rebellion taking into
consideration the ruling of the Supreme Court in People vs. Hernandez, G.R.
No. L-6025, July 18, 1956, “the word ‘rebellion’ evokes, not merely a challenge
to the constituted authorities, but, also, civil war, on a bigger or lesser scale,
with all the evils that go with it.” Civil war presupposes engaging in combat
against the forces of the Government, destroying property or committing serious
violence. By reason thereof, it is submitted that if the facts in the bar
examination is similar to the Manila Peninsula incident, the participants
thereof are liable for sedition since there is public and tumultuous uprising to
prevent a pubic office (e.g. the President) from freely exercising its function by
other means outside of legal methods.

b. Incidental deprivation of liberty - If the principal intention of the

offenders is to rob the victims, and the deprivation of their liberty is just
incidental to the prevention of the responding police officers from arresting
them, the crime committed is robbery, which absorbed kidnapping and serious
illegal detention (People vs. Astor, G.R. Nos. L-71765-66, 29 April 1987). If the
accused committed robbery, but thereafter, they detained the victims to
demand additional money, and later forestall their capture by the police, the
crime committed is complex crime of robbery through kidnapping and serious
illegal detention. The detention was availed of as a means of insuring the
consummation of the robbery. The detention was not merely a matter of
restraint to enable the malefactors to escape, but deliberate as a means of
extortion for an additional amount. Hence, the Astor principle is not applicable
(People vs. Salvilla, G.R. No. 86163 April 26, 1990). If the accused committed
robbery by band, but thereafter, they took one of the victims and detained him
for seven days in another place for purpose of demanding ransom, they are
liable of separate crimes of robbery by band and kidnapping for ransom (People
vs. Basao, G.R. No. 189820, October 10, 2012).

31. Delito continuado - In order that continuous crime may exist, there
should be: (1) plurality of acts performed separately during a period of time; (2)
unity of criminal intent and purpose and (3) unity of penal provision infringed
upon or violated (Santiago vs. Garchitorena , GR NO. 109266, December 2,
1993). The following are delito continuado: (1) several acts of taking roasters
owned by different owner under a single criminal impulse to take them all in
violation of a single penal provision, and that is Article 308 of RPC (Note: This
is also called single larceny rule; People vs. Jaranilla, G.R. No. L-28547,
February 22, 1974); and (2)several acts of taking away by force the valuables of
the employees working in Energex gasoline station committed under a single
criminal intent to commit robbery in that place in violation of a single penal
provision, and that is Article 294 of RPC (People vs. De Leon, GR No. 179943,
June 26, 2009).

Accused inserted his penis thrice into the private part of victim for
purpose of changing position.  The three penetrations motivated by a single
criminal intent to satisfy his lust in violation of single penal provision (Article
266-A of RPC) constitute a continued crime of rape (People vs. Aaron, G.R. Nos.
136300-02, September 24, 2002). Accused inserted his penis thrice into the
private part of victim for purpose of resting for five minutes. He satisfied his
lust every time he would withdraw his penis to rest. Since the three
penetrations were motivated by separate three criminal impulse to satisfy his
lust, three separate crimes of rape are committed (People vs. Lucena, GR No.
190632, February 26, 2014).

Foreknowledge doctrine - There is no delito continuado where the

accused when he committed the first threat against the victim has no
foreknowledge that he will chance upon the second and third victims to commit
the second and third threat. Without such foreknowledge, three threats could
not be said to have been committed under a single criminal impulse, which is
the basis of applying delito continuado principle. Several threats can only be
considered as continued crime if the offender threatened three individuals at
the same place and at the same time (Paera vs. People, G.R. No. 181626, May
30, 2011).

32. Subsidiary imprisonment - Under Article 78 of RPC, no penalty shall be

executed except by virtue of a final judgment. Subsidiary imprisonment is a
penalty since under Article 39 of RPC, it is imposed upon the accused and
served by him in lieu of the fine which he fails to pay on account of insolvency.
Where the judgement finding the accused guilty does not impose subsidiary
imprisonment in case of non-payment of fine by reason of insolvency, the
court could not legally compel him to serve said subsidiary imprisonment. To
rule otherwise is to violate RPC and the constitutional provision on due
process (People vs. Alapan, G.R. No. 199527, January 10, 2018).

33. Reclusion perpetua - Reclusion perpetua, which has duration of 40 years

under Article 27 of RPC, and 30 years under Article 29 of RPC as amended by
RA No. 10592 if the convict has undergone preventive imprisonment, is a lighter
penalty than life imprisonment, which has no duration. Amendatory law,
which prescribes reclusion perpetua instead of life imprisonment, shall be
given a retroactive effect for being favorable to the accused (People vs. Morilla,
GR No. 189833, February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229
October 19, 2011, ).

Reclusion perpetua, which has duration of 40 years, and 30 years if the

convict has undergone preventive imprisonment, is a lighter penalty than life
imprisonment, which has no duration. Amendatory law, which prescribes
reclusion perpetua instead of life imprisonment, shall be given a retroactive
effect for being favorable to the accused (People vs. Morilla, GR No. 189833,
February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229 October 19, 2011,
).

34. Special mitigating circumstance - Accused was found guilty of parricide

punishable by the penalty of reclusion perpetua to death. Applying rules for
application of indivisible penalties (Article 63), the lesser penalty of reclusion
perpetua shall be applied if there are two mitigating circumstance. The penalty
cannot be lowered to reclusion temporal, no matter how many mitigating
circumstances are present. The special mitigating circumstance is found in
rules for application of divisible penalties (Article 64), which is not applicable
because the penalty is not divisible (People vs. Takbobo, G.R. No. No. 102984,
June 30, 1993; ; People vs. Sales, G.R. No. 177218 October 3, 2011, ). The
Takbobo principle is also applicable if the penalty prescribed by law for the
crime committed is a single indivisible penalty such as reclusion perpetua.

35. Mitigating circumstance in imprudence case - According to Justice

Perlas-Bernabe, the rules on the attendance of modificatory circumstances e.g.,
the mitigating circumstance of voluntary surrender should be considered in
reckless imprudence resulting in homicide (Curammeng vs. People, G.R. No.
219510, November 14, 2016;). However, this is not a controlling rule. Under
Article 365 of the RPC, in the imposition of penalties for imprudence and
negligence, the court shall exercise their sound discretion, without regard to the
rules prescribed in Article 64 (on appreciation of mitigating circumstances).
Thus, court shall not consider mitigating circumstance of voluntary confession
in applying the penalty for imprudence or negligence in its minimum period
(People vs. Agito, G.R. No. L-12120, April 28, 1958 and Mariano vs. People,
G.R. No. 178145, July 07, 2014). Neither the court shall consider the special
mitigating circumstance of confession and surrender in reducing the penalty
for this crime one degree lower (People vs. Medroso, Jr. G.R. No. L-37633,
January 31, 1975).

36. Mandatory application of the Islaw - The application of the Indeterminate

Sentence Law is mandatory to both the Revised Penal Code and the special
laws (Romero vs. People, G.R. No. 171644, November 23, 2011). However, the
Supreme Court, in People vs. Nang Kay, G. R. No. L-3565, April 20, 1951, has
provided an exception. In this case, the accused pleaded guilty to offense where
the law prescribed a penalty of 5 to 10 years imprisonment. The court
sentenced the accused to suffer 5 years of imprisonment. The Supreme Court
sustained the penalty. Fixing the penalty at the minimum limit without
applying Act No. 4103 is favorable to the accused since the accused shall be
automatically released upon serving 5 years of imprisonment. Applying Act No.
4103 would lengthen the penalty because the indeterminate maximum penalty
must be necessarily more than 5 years (People vs. Arroyo, G.R. No. L-35584-
85, February 13, 1982). However, the Nang Kay principle is not applicable
where the crime is punishable under the Revised Penal Code. The application
of ISLAW is always mandatory if the penalty is prescribed by RPC since it is
favorable to the accused. It is favorable to the accused since in fixing the
minimum penalty, the prescribed penalty under the Code shall be lowered by
one degree. On the other hand, in fixing the minimum penalty for offense
under special law involved in the Nang Kay case, the prescribed penalty shall
not be lowered (People vs. Judge Lee, Jr, G.R. No. 66859, September 12, 1984).
The Nang Kay principle is not also applicable where the accused does not
deserve a lenient penalty. In Batistis vs. People, G.R. No. 181571, December
16, 2009, the SC said the Nang Kay exception is not applicable where there is
no justification for lenity towards the accused since he did not voluntarily
plead guilty, and the crime committed is a grave economic offense because of
the large number of fake Fundador confiscated.

37. Adoption of the technical nomenclature of the Spanish penalty - The

Revised Penal Code is not generally applicable to mala prohibita or crimes
punishable under special laws. (1967 Bar Exam) However, when a special law,
which punishes malum prohibitum, adopts the technical nomenclature of the
penalties (e.g. prison mayor) in the Revised Penal Code, the intention of the law
is to adopt the provisions under this Code on imposition of penalty (People v.
Simon, G.R. No. 93028, July 29, 1994) such as: (1) Article 62 on the special
aggravating circumstance of organized/syndicated crime group (People v.
Esparas, G.R. No. 120034, July 10, 1998); (2) Article 64 on application of
penalty in its proper impossible period taking into consideration the presence
of mitigating circumstance (e.g. voluntary confession) and aggravating
circumstance (Jacaban v. People, G.R. No. 184355, March 23, 2015; Malto v.
People, G.R. No. 164733, September 21, 2007); (3) Article 68 on the privileged
mitigating circumstance of minority (People v. Montalaba, G.R. No. 186227,
July 20, 2011; People v. Musa, G.R. No. 199735, October 24, 2012); and (4)
Article 160 on special aggravating circumstance of quasi-recidivism. (People v.
Salazar, G.R. No. 98060, January 27, 1997)

If the special law has not adopted the technical nomenclature of penalties
in the Revised Penal Code, the intention of the law is not to adopt the
provisions of this Code on imposition of penalties. Moreover, modifying
circumstances cannot be appreciated since the penalty not borrowed from the
Code has no periods. The crime has no attempted or frustrated stage since this
penalty cannot be graduated one or two degrees lower.

For example, the accused confessed to an offense where the special law
prescribes the penalty of not more than 10 years of imprisonment but not less
than 5 years (American penalty). Under Article 63 of the Revised Penal Code, if
there is a mitigating circumstance such as confession, the penalty shall be
applied in its minimum period. However, confession cannot be appreciated
since the penalty prescribed by law, which is not borrowed from the Code, has
no minimum period.

However, the Simon principle is not applicable if the crime committed

involved dangerous drugs because R.A. No. 9165 has a special rule on the
application of the provisions of the Revised Penal Code. Under Section 98 of
R.A. No. 9165, notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code shall not apply to the provisions of this
Act, except in the case of minor offenders.

R.A. No. 9165 has not adopted the technical nomenclature of the penalties
of the Revised Penal Code (e.g. the penalty for possession of dangerous drugs
involving shabu of less than 5 grams is imprisonment of 12 years and 1 day to
20 years). If the accused is a minor, the penal system of the Revised Penal
Code shall apply because Section 98 of R.A. No. 9165 say so. To apply the
penal provisions of the Code, the penalty for R.A. No. 9165 must be converted
into a Spanish penalty. For example, the penalty for sale of dangerous drugs or
importation of dangerous drugs is life imprisonment to death. If the accused is
a minor, this penalty shall be converted into reclusion perpetua to death.
Taking into consideration the privileged mitigating circumstance of minority,
reclusion perpetua to death shall be reduced to reclusion temporal. (People v.
Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa, G.R. No. 199735,
October 24, 2012).

However, even though Section 98 of RA No. 9165 mandates the application

of the provisions of the Revised Penal Code in a case where the offender is a
minor, if the penalty for a crime involving dangerous drugs cannot be converted
into a Spanish penalty, the penal provisions of the Revised Penal Code shall
not apply. For example, the penalty for use of dangerous drugs committed by a
first-time offender is rehabilitation. Even if the offender is a minor, the
privileged mitigating circumstance of minority shall not be considered because
this penalty of rehabilitation cannot be converted into Spanish penalty, and
thus, it cannot be reduced one degree lower.

38. Three-fold rule - The three-fold rule is to be taken into account not in the
imposition of the penalty but in connection with the service of the sentence
imposed (People vs. Escares, G.R. No. L-11128-33, December 23, 1957;
Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987). Thus, the
court cannot dismiss criminal cases in excess of three on the basis of three-fold
rule.

39. Good conduct time allowance – There are three benefits given by the
controversial RA No. 10592, to wit: (1) credit of preventive imprisonment; (2)
good conduct allowance for preventive imprisonment; and (3) good conduct
allowance for imprisonment.

Credit of preventive imprisonment is governed by Article 29 of the

Revised Penal Code as amended by RA No. 10592. Under this provision,
offenders who have undergone preventive imprisonment shall be credited in the
service of their sentence except in the following cases: (1) when they are
recidivists, (2) when they have been convicted previously twice or more times of
any crime; and (3) when upon being summoned for the execution of their
sentence they have failed to surrender voluntarily.

Good conduct allowance for preventive imprisonment is governed by

Articles 29 and 97 of the Revised Penal Code as amended by RA No. 10592.
Under Section 29, the computation of preventive imprisonment for purposes of
immediate release if the accused has undergone preventive imprisonment for a
period equal to the possible maximum imprisonment of the offense charged.
However, this entitlement is subject to a qualifying proviso, which is quoted as
follows: “Provided, finally, That recidivists, habitual delinquents, escapees and
persons charged with heinous crimes are excluded from the coverage of this Act.”

Good conduct allowance for imprisonment is governed by Articles 97 of

the Revised Penal Code as amended by RA No. 10592. Unlike Article 29, Article
97 does not provide an exclusionary or disqualification clause or qualifying
proviso. It seems that one who committed a heinous crime is not disqualified
from the benefit of good conduct allowance.

The word “provided finally” in Article 29 of RPC means that the sentence
subsequent to this phrase is a qualifying proviso. Settled is the rule that a
proviso will merely qualify or modify the provision that immediately preceded it.
In People vs. Tulugan, G.R. No. 227363, March 12, 2019, it was held that the
office of the proviso qualifies or modifies only the phrase immediately preceding
it or restrains of limits the generality of the clause that it immediately follows.
A proviso is to be construed with reference to the immediately preceding part of
the provisions, to which it is attached, and not to the statute itself or the other
sections thereof.

Applying the Tulugan principle, the proviso under Article 29 on “the

exclusion of heinous crimes from the coverage of RA No. 10592” merely qualifies
the provision under Article 29 on good conduct allowance for preventive
imprisonment. The qualifying effect of the proviso under Article 29 cannot
extend to the provision under Article 97 on good conduct allowance for
imprisonment.

40. Modes of criminal extinction – The modes of extinguishing criminal

liability are: death of the offender; service of the sentence; amnesty or absolute
pardon; prescription of crime, or penalty; marriage between the offender and
the offended in crimes against chastity (Article 89 of RPC) or in rape; or
forgiveness in marital rape (Article 266-C); and probation (PD No. 968 as
amended by RA No. 10707).

41. Re-election - Re-election to public office is not provided for in Article 89

of the Revised Penal Code as a mode of extinguishing criminal liability for
criminal offense incurred by a public officer prior to his re-election. (Oliveros
v. Judge Villaluz, G.R. No. L-34636, May 30, 1974; 1974 and 1980 Bar Exams)

Under the old rule, a re-elected public official could not be removed for
administrative offense committed during a prior term, since his re-election to
office operates as a condonation of his misconduct to the extent of cutting off
the right to remove him therefor. (Aguinaldo v. Santos, G.R. No. 94115, August
21, 1992) However, in Morales v. CA and Binay, G.R. Nos. 217126-27,
November 10, 2015, Perlas-Bernabe, doctrine of administrative condonation
has been abandoned because it is plainly inconsistent to the concept of public
office is a public trust and the corollary requirement of accountability to the
people at all times, as mandated under Section 1, Article XI of the 1987
Constitution. Election is not a mode of condoning an administrative offense. In
this jurisdiction, liability arising from administrative offenses may only be
condoned by the President. Power to grant executive clemency under Section
19, Article VII of the 1987 Constitution extends to administrative offense.

But the Binay principle shall be given a prospective effect. Hence, if a

public officer is reelected before November 10, 2015 (the date of the ruling in
the Binay case), he can still use the condonation doctrine as a defense in an
administrative case. (Ombudsman vs. Mayor Vergara, G.R. No. 216871,
December 6, 2017)

42. Novation - Novation is not a mode of extinguishing criminal liability but it

can extinguish the old contract, which may be the basis of criminal liability. In
estafa through misappropriation, “receiving the property in trust” is an element
thereof. In sum, contract is an ingredient of this crime. Novation may convert
the contract of trust into creditor-debtor situation, or put doubt on the true
nature of the original transaction (People vs. Nery, G.R. No. L-19567, February
5, 1964). In these situations, the accused will be acquitted for failure to prove
the element of “receipt of property in trust.” Thus, novation is a defense in
estafa through misappropriation where the contract of agency is converted into
sale (Degaños vs. People, GR No. 162826, October 14, 2013). However, partial
payment and promise to pay the balance of obligation under contract of agency
will not convert it into sale. There is no novation since the obligation of the
accused in making a partial payment is not incompatible to the obligation to
give the proceeds of sale of the property under the contract of agency (Degaños
vs. People, supra).

Novation cannot be used as a defense in case where the existence of

contract is not an element. In theft case, there was no contractual relationship
or bilateral agreement which can be modified or altered by the parties (People
vs. Tanjutco, G.R. No. L-23924, April 29, 1968, En Banc). In estafa through
falsification of public documents, the liability of the offender cannot be
extinguished by mere novation (Milla vs. People, G.R. No.  188726, January 25,
2012).

43. Death - Death of an accused pending appeal shall extinguish his criminal
liability and civil liability arising from crime (Article 89 of RPC); but not his civil
liability arising from a source other than crime (e.g. quasi-delict, contract,
quasi-contract or law). Civil liability arising from a source other than crime is
not deemed included in the institution of criminal action. Hence, the private
complainant must file a separate civil action against either the executor or
administrator, or the estate of the accused. During the pendency of the
criminal case, the statute of limitations on this surviving civil liability is
deemed interrupted (People vs. Bayotas, G.R. No. 102007, September 2, 1994).
However, in violation of BP Blg. 22, civil liability arising from a source other
than crime is mandatorily included in the institution of criminal action. Hence,
the court, despite the death of the accused pending appeal, must determine his
civil liability arising from contract (Bernardo vs. People, G.R. No. 182210,
October 05, 2015). In sum, the private complainant is not required to file a
separate civil action based on contract involving a dishonored check.

44. Immutability of final judgement - Under the doctrine of finality of

judgment or immutability of judgment, a decision that has acquired finality
becomes immutable and unalterable, and may no longer be modified in any
respect, even if the modification is meant to correct erroneous conclusions of
fact and law, and whether it be made by the court that rendered it or by the
Highest Court of the land. Nonetheless, the immutability of final judgments is
not a hard and fast rule as the Court has the power and prerogative to relax
the same in order to serve the demands of substantial justice. (People vs. Layag,
G.R. No. 214875, October 17, 2016, Perlas-Bernabe)

If the death of the accused happened prior to the finality of the

judgement convicting him of rape and acts of lasciviousness, but the Supreme
Court was belatedly informed of such death only after the finality of such
judgment, the case will be re-opened for purposes of dismissing the case.
(People vs. Layag, G.R. No. 214875, October 17, 2016, Perlas-Bernabe) If the
penalty imposed by the trial court is not in accordance with the law, the
Supreme Court can re-open a final and immutable judgement judgment to
impose the correct penalty under the law. (Bigler vs. People, G.R. No. 210972,
March 19, 2016, Perlas-Bernabe) If the new law prescribes a lesser penalty for
the crime of which the accused was previously convicted by final judgement,
the Supreme Court can re-open a final and immutable judgement judgment to
impose the lesser penalty under the new law. In sum, the new law shall be
given a retroactive effect. (Hernan vs. Honorable Sandiganbayan, G.R. No.
217874, December 5, 2017). Layag case, Bigler and Hernan case are exceptions
to the immutability of final judgment rule.

45. Pardon - Person, who was pardoned for the crime punishable by reclusion
perpetua, cannot run in the Senatorial race if the terms of the pardon has not
expressly restored his right to hold public office (Article 36 of RPC) or expressly
remitted the accessory penalty of perpetual absolute disqualification (Article
41). GMA pardoned President Estrada with express restoration of his civil and
political rights. Hence, he is eligible to run as Mayor (Risos-vidal vs. Lim, G.R.
No. 206666, January 21, 2015).

46. Amnesty - In Vera vs. People, G.R. No. L-18184, January 31, 1963, the
Supreme Court En Banc rejected the argument of the petitioners that it is not
necessary for them to admit the commission of the crime charged to be entitled
to the benefits of amnesty proclamation. Amnesty presupposes the commission
of a crime, and when an accused maintains that he has not committed a crime,
he cannot have any use for amnesty. Where an amnesty proclamation imposes
certain conditions, as in this case, it is incumbent upon the accused to prove
the existence of such conditions. The invocation of amnesty is in the nature of
a plea of confession and avoidance, which means that the pleader admits the
allegations against him but disclaims liability therefor on account of
intervening facts which, if proved, would being the crime charged within the
scope of the amnesty proclamation.

a. Amnesty commission - Under Amnesty Proclamation no. 8, dated

September 7, 1946 issued by President Roxas and concurred by Congress,
declares amnesty in favor of persons, who committed felony in furtherance of
the resistance to the enemy during the Japanese occupation. The proclamation
tasked the Amnesty Commission to determine if the crime is committed within
the terms thereof. However, while the Commission can take cognizance of the
applications for amnesty, the courts are not excluded to decide any claim for
amnesty. An accused charged before the courts may claim amnesty as a
defense, waive the filing of an application therefor, and submit evidence thereof
in the trial of his case (to prove that the crime was committed in furtherance of
the resistance to the enemy). In sum, while all applications should be passed
upon by commissions, an accused may, instead of filing an application, choose
the alternative remedy of just raising the issue in a court of justice in the trial
of his case (People vs. Macadaeg, G.R. No. L-4316, May 28, 1952). If a person
opted to file an application for amnesty with the commission, but he is unable
to obtain his release through executive channels although he is entitled to the
benefits of this proclamation, it devolves on the courts to protect his right
(Tolentino vs. Catoy, G.R. No. L-2503, December 10, 1948).

b. Criminal extinction - Under Article 89 of the Revised Penal Code,

amnesty totally extinguishes criminal liability, the penalty for the crime and all
its effects. However, if the granting of benefit under amnesty proclamation is
subject to a condition, the criminal extinction will only occur upon happening
of the condition and not upon the issuance of the proclamation by the
President, or concurrence of Congress.

Under Amnesty Proclamation no. 8, dated 1946, the amnesty covers

crimes committed in furtherance of resistance against the enemy as
determined by the Commission. In Vera vs. Nanadiego, G.R. No. L-26539,
February 28, 1990, the Supreme Court ruled that the criminal liability of the
appellee had been completely extinguished by virtue of the amnesty extended
to him by Commission in 1956.

Amnesty Proclamation no. 76, dated June 21, 1948 issued by President
Quirino, granted amnesty to huks, who have committed the rebellion subject to
the condition that they must presented themselves with all their arms to the
authorities within 20 days from the date of concurrence by the Congress.
Compliance with the condition as determined by the amnesty commission or
the court shall extinguish his criminal liability (Tolentino vs. Catoy, G.R. No. L-
2503, December 10, 1948).

c. Revocation of the amnesty – Proclamation No. 75 issued by

President Aquino and concurred in by Congress granted amnesty to the
participants of July 27, 2003 Oakwood Mutiny, the February 2006 Marines
Stand-Off and the November 29, 2007 Manila Peninsula Incident. Under
Section 2 of Proclamation No. 75, they have to apply with the ad hoc committee
of the Department of National Defense to be entitled to the benefit of the
amnesty proclamation. President Duterte on August 31, 2018 issued
Proclamation No. 572 declaring the granting of amnesty to Senator Trillianes as
null and void for failure to file application as required in Section 2 of
Proclamation No. 75. The Proclamation No. 572 is not a revocation of
Proclamation No. 75 but a declaration of nullity of the granting of amnesty for
failure to comply with Section 2 of the amnesty proclamation. Thus, it seems
the issue in this declaration of nullity is factual rather than constitutional. In
sum, Proclamation No. 572 did not revoke the amnesty granted by President
Aquino and concurred in by Congress. It merely declared null and void the
granting of the benefit of the amnesty by Department of National Defense to
Senator Trillianes. Prolamation No. 572 is an attack against the decision of
Department of National Defense granting amnesty and not against the bilateral
acts of President Aquino and Congress in issuing Proclamation No. 75. By
basing his declaration of nullity of the granting of amnesty on failure to file an
application, the President is invoking Section 2 of Proclamation No. 75; hence,
he is in effect validating the amnesty proclamation rather than revoking it.

Can the incumbent President revoke the amnesty proclamation issued by

a former President and concurred in by Congress? No. Amnesty proclamation
issued by a former President under express authority of the Constitution and
concurred in by Congress has the nature, force, effect, and operation of a law
(People vs. Macadaeg, G.R. No. L-4316, May 28, 1952). Hence, an incumbent
president cannot unilaterally revoke the bilateral acts of the former President
and Congress in making an amnesty proclamation. Same as a law, amnesty
proclamation can only revoke by concurrent actions of the President and
Congress. Moreover, amnesty extinguishes the criminal liability of the amnesty
beneficiary. Hence, revocation made after the criminal extinction will not
prejudice the amnesty beneficiary.

Can the incumbent President nullify the decision of the Department of

National Defense for failure to file application for amnesty as an express
precondition to the granting of the benefit under an amnesty proclamation and
failure to admit his guilt? Yes. The Department of National Defense is under
the control power of the President. Hence, he can nullify its decision granting
amnesty benefit despite of the failure of the beneficiary to comply with
conditions of the amnesty proclamation. But the nullification is subject to the
judicial review. If the court finds that amnesty beneficiary made an application
and admitted his guilt therein and the Department of National Defense
properly approved the application, it may reverse the decision of the President
on the ground of grave abuse of discretion tantamount to lack or in excess of
jurisdiction. The proper approval of the amnesty application extinguishes the
criminal liability of the applicant for the crime covered by the proclamation.

d. Non-delegation of power - Legislative, executive and judicial powers

belong to the people because “sovereignty resides in the people and all
government authority emanates from them”. When the people ratified the 1987
Constitution, they delegated these powers to the three main branches of
government by vesting legislative power, executive power and judicial power in
Congress, the President and Supreme Court and other lower courts,
respectively. Since the people entrust these powers to these organs of
government, as a rule they may not re-delegate it to others. Re-delegation of
these powers is a betrayal of the trust reposed to them by the people.

This principle of non-delegability of power is in conformity with the Latin

maxim of “Potestas delegata non potest delagari”, or delegated authority cannot
be delegated. The basis of this doctrine is the ethical principle that such a
delegated power constitutes not only a right but a duty that the delegate must
perform through his own judgment without intervention from another.

However, the principle of non-delegability of power is not an absolute

rule. It is subject to several exceptions. Congress in passing legislation is
allowed to authorize an agency under the Executive Branch to issue
implementing rules and to determine the existence of certain facts in
connection with the implementation of the law. The conferment of quasi-
legislative power and quasi-judicial power to an implementing executive agency
by Congress is not a violation of maxim of “potestas delegata non potest
delagari.” Thus, Congress can make a tax amnesty and require the Bureau of
Internal Revenue to determine whether a tax payer, who filed a tax amnesty
application, is entitled to the benefit of the law.

Under Amnesty Proclamation no. 8, dated September 7, 1946 issued by

President Roxas and concurred by Congress, declares amnesty in favor of
persons, who committed felony in furtherance of the resistance to the enemy
during the Japanese occupation. The proclamation tasked the Amnesty
Commission to determine if the crime is committed within the terms thereof. In
Vera vs. Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court
recognized the amnesty extended by the Commission to amnesty applicant.

47. Prescription – Prescription of crime is a mode of extinguishing criminal

liability.

a. Blameless ignorance doctrine - The State and private complainant

should not be blame for failure to institute the case immediately after the
commission of the crime if they are ignorant or has no reasonable means of
knowing the existence of a crime. Under "blameless ignorance" doctrine
(Section 2 of Act 3326 and Article 91 of RPC), the prescription runs only upon
discovery of the crime by offended party or State through a person in authority
or his agent. Considering that during the Marcos regime, no person would
have dared to assail the legality of the transactions involving cronies such as
behest loan, it would be unreasonable to expect that the discovery of the
unlawful transactions was possible prior to 1986 (Disini vs. Sandiganbayan,
G.R. No. 169823-24 and 174764-65, September 11, 2013). Hence, the
prescriptive period for violation of RA No. 3019 commenced from the date of its
discovery in 1992 after the Committee made an exhaustive investigation
(Presidential Ad hoc fact-finding committee vs. Hon. Desierto, G.R. No. 135715,
April 13, 2011).

b. Discovery by a witness - Prescription runs only upon discovery of the

crime by offended party or person in authority or his agent. For purpose of
prescription of crime, the offended party includes the person to whom the
offender is civilly liable. Thus, the widow of the murdered victim is an offended
party (Garcia vs. CA, G.R. No. 119063, January 27, 1997). Discovery of crime
by a mere witness, who is not an offended party, will not commence the
running of prescription.

c. Constructive notice rule - The 10-year prescriptive period for

falsification of document shall commence to run on the date of recording of the
falsified deed of sale in the Registry of Deeds because of the constructive notice
rule under the Torren system (People vs. Reyes, G.R. No. 74226, July 27,
1989). The 15-year prescriptive period for bigamy shall commence to run on
the date of actual discovery of the bigamous marriage and not from the
registration of bigamous marriage in the Office of the Civil Registrar. The law
on Civil Registry and the Family Code, which governed registration of marriage,
do not provide a rule on constructive notice (Sermonia vs. Court of Appeals,
G.R. No. 109454, June 14, 1994).

d. Non-actionable crime - As a rule, period of prescription commence to

run from the date of discovery of its commission. However, if the crime is not
yet actionable at the time of its commission, period of prescription will
commence to run from the time it becomes actionable. In false testimony, the
period of prescription commences to run from the date of the finality of
judgment of a case in which the offender testified falsely. Prior to the date of
finality, the crime is not yet actionable (People vs. Maneja, G.R. No. 47684,
June 10, 1941). In violation of BP Blg. 22, the crime is consummated upon the
dishonor of the check by the drawee bank (Bautista vs. Court of Appeals, G.R.
No. 143375, July 6, 2001). However, in violation of BP 22, the four-year period
of prescription for such crime commences to run from the date of the expiration
of the five-day period from receipt of notice of dishonor by the drawer. Prior to
that date, the crime is not yet actionable (People vs. Pangilinan, G.R. No.
152662, June 13, 2012). It would be absurd to consider the prescriptive period
for false testimony or violation of BP Blg. 22 as already running before it
becomes actionable, and yet, the complainant could not cause its interruption
because he is not yet allowed to file a complaint.

e. Filing of complaint for preliminary investigation - If the crime is

punishable by the Revised Penal Code or a special law, the institution of
judicial proceeding(e.g. filing of complaint or information in court) or executive
proceeding (e.g. filing of complaint for preliminary investigation) interrupts the
running of prescription such as the filing of complaint: (1) for violation of BP
Blg. 22 in the prosecutor’s office - People vs. Pangilinan, G.R. No. 152662,
June 13, 2012;Panaguiton vs. Department of Justice, G.R. No. 167571,
November 25, 2008; (2) for violation of Revised Securities Act in Securities and
Exchange Commission - SEC vs. Interport Resources Corporation, G.R. No.
135808, October 6, 2008; or (3) violation of RA No. 3019 in the Ombudsman -
Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11,
2013. 

The PCGG has no power to investigate cronies of Marcos for violation of

RA No. 3019 not involving ill-gotten wealth. Such investigation for being void ab
initio would not interrupt the running of prescription (People vs. Romualdez
and Sandiganbayan, G.R. No. 166510, April 29, 2009).

If the crime is punishable by an ordinance, only the institution of judicial

proceeding shall interrupt its two-month prescriptive period. The provision in
the Rules on Criminal Procedure regarding the interruption of prescription by
institution criminal action is not applicable to violation of ordinance because it
is covered by the Rules on Summary Procedure. Hence, the filing of complaint
involving violation of ordinance for preliminary investigation will not interrupt
the running of the prescription (Jadewell Parking Systems Corp. vs. Lidua, Sr.,
GR No. 169588, October 7, 2013).
48. Probation -Probation shall suspend the execution of principal penalty of
imprisonment, and accessory penalty of disqualification (Villareal vs. People,
G.R. No. 151258, December 01, 2014) but not the implementation of the civil
aspect of the judgment (Budlong, vs. Palisok, GR No. 60151, June 24, 1983).

When a judgment of conviction imposing a non-probationable penalty is

appealed or reviewed, and such judgment is modified through the imposition of
a probationable penalty, the defendant shall be allowed to apply for probation
based on the modified decision before such decision becomes final. This
notwithstanding, the accused shall lose the benefit of probation should he seek
a review of the modified decision which already imposes a probationable
penalty (Section 4 of PD 968 as amended by RA No. 10707). In Colinares vs.
People, G.R. No. 182748, December 13, 2011, the accused, who was convicted
by the lower court of a non-probationable offense of frustrated homicide, but
on appeal was found guilty of a probationable offense of attempted homicide,
may apply for probation. In Villareal vs. People, G.R. No. 151258, December 1,
2014, 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.

In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874, December 5,

2017, accused was convicted of malversation and sentenced to suffer a penalty
of 11 years, 6 months and 21 days of prision mayor, which is non-
probationable. The judgment becomes final prior to the effectivity of RA No.
10951. Under Article 217 of the Revised Penal Code as amended by RA No.
10951, the penalty for malversation involving an amount of not exceeding
P40,000 is only prision correccional in its medium and maximum periods.
Despite the immutability of a final judgment, the Supreme Court reduced the
penalty to 3 years, 6 months and 20 days of prision correccional in accordance
with RA No. 10951, which penalty is now probationable. It was stated that
because of RA No. 10951, not only must sentence of the accused be modified
respecting the settled rule on the retroactive effectivity of favorable laws, she
may even apply for probation. In sum, applying Section 4 of P.D. No. 968, as
amended by R.A. No. 10707, since the judgment of conviction imposing a non-
probationable penalty is modified through the imposition of a probationable
penalty, she is now allowed to apply for probation based on the modified
decision before such decision becomes final.

Under PD No. 968 as amended, crimes against public disorder are non-
probationable. However, under RA No. 10707, crimes against public disorder
such as alarm and scandal and direct assault are now probationable.

The period of probation of a defendant sentenced to a term of

imprisonment of not more than one year shall not exceed two years, and in all
other cases, said period shall not exceed six years. When the sentence imposes
a fine only and the offender is made to serve subsidiary imprisonment in case
of insolvency, the period of probation shall not be less than nor to be more
than twice the total number of days of subsidiary imprisonment (Section 14 of
PD No. 968).

Article 89 of the Revised Penal Code (RPC) enumerates the modes of

criminal extinction such as death, pardon and amnesty. In People vs. Henry
Go, G.R. No. 168539, March 25, 2014, it was stated that the only thing
extinguished by the death of the offender is his criminal liability. His death did
not extinguish the crime. In People vs. Patriarca, Jr., G.R. No. 135457,
September 29, 2000, the Supreme Court ruled that pardon looks forward and
abolishes or forgives the punishment.

Applying the Henry Go case and Patriarca case, the modes mentioned in
Article 89 of RPC such as death and pardon merely extinguish the criminal
liability of the offender but not the crime itself. However, there is a special rule
on amnesty. Article 89 of the Revised Penal Code provides that amnesty
completely extinguishes the penalty and all its effects. Because of this special
rule of extinguishment of all effects of the crime, the Supreme Court in
Patriarca stated that amnesty looks backward and abolishes and puts into
oblivion the offense itself. In sum, amnesty extinguishes not only the criminal
liability of the offender but also the crime itself.

Under Section 16 of PD No. 968 as amended by RA No. 10707, final

discharge of the probationer extinguishes his criminal liability. The intention of
the law is to make a mode of criminal extinction in addition to those listed in
Article 89 of RPC. Since final discharge of the probationer under Section 16 of
PD No. 968 merely extinguishes his criminal liability, and not all effects of the
crime, the effect of such discharge is similar to death or pardon, and not to
amnesty. In sum, discharge of the probationer looks forward and extinguishes
merely the criminal liability and not the crime itself.

Since the previous crime covered by probation is not extinguished by the

discharge of the probationer, the same shall be considered for purposes of
determining if the accused is a recidivist in committing a second crime, which
is embraced in the same title.

49. Piracy - Under Section 2(a) of PD 532, "Philippine waters" is defined as

bodies of water, such as but not limited to, seas, gulfs, bays around, between
and connecting each of the Islands of the Philippine Archipelago, irrespective
of its depth, breadth, length or dimension, and all other waters belonging to
the Philippines by historic or legal title, including territorial sea, the sea-bed,
the insular shelves, and other submarine areas over which the Philippines has
sovereignty or jurisdiction. Thus, a river in a municipality is considered as
part of Philippine waters for purpose of piracy (People vs. Dela Pena, G.R. No.
219581, January 31, 2018, ).

50. Direct assault – Simple assault (such as punching) upon an agent of a

person in authority (e.g. police officer) while engaged in the performance of duty
constitutes simple resistance and not direct assault because there is no intent
to defy the law and its representative at all hazard, which is an element thereof
(U.S. vs. Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R. No.
13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226, November 17,
1933). But serious assault upon agent of a person in authority while engaged in
the performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406,
January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).

Simple assault (such as punching) upon a person in authority (e.g. mayor

or chief of police) while engaged in the performance of duty constitutes
qualified direct assault. The law does not distinguish between serious and
simple “laying of hands” upon a person in authority as a qualifying
circumstance. Hence, a simple laying of hands upon a person in authority
constitutes qualified direct assault. The Tabiana principle is only applicable if
the victim is an agent of a person in authority (U.S. vs. Gumban, G.R. No.
13658, November 9, 1918).

If the person in authority or his agent is engaged in the actual

performance of duties at the time of the assault, the motive for the assault is
immaterial. Direct assault is committed even if the motive (such as non-
payment of loan) was totally foreign to victim’s official function (Sarcepuedes
vs. People, G.R. No. L-3857, October 22, 1951).

The phrase "on occasion of such performance" used in Article 148 of RPC
means "by reasonof the past performance of official duty because the purpose of
the law is to allow them to discharge their duties without fear of being
assaulted by reason thereof (People vs. Renegado, G.R. No. L-27031, May 31,
1974). Attacking a judge on the street by reason of past performance of duty
(such as citing the accused in contempt) constitutes qualified direct assault
(U.S. vs. vs. Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired
judge by reason of past performance of duty is not direct assault since he is not
anymore a person in authority at the time of the assault. Note: The mandatory
retirement age of a judge is 70 year.

The status of lawyer as persons in authority remains even the assault is

committed outside the court room as long as it is perpetrated by reason of the
performance of their professional duties (Records of the Batasan, Volume Four,
1984-1985 of BP Blg. 873, which amended Article 152 of RPC).

Attacking a third person who comes to the aid of a person in authority,

who is a victim of direct assault, is liable for direct assault upon an agent of a
person in authority. Attacking a third person who comes to the aid of an agent
of person in authority, who is a victim of direct assault, is liable for indirect
direct assault. Attacking a third person who comes to the aid of an agent of
person in authority, who is a victim of simple resistance, is liable for physical
injuries.

Slapping and pushing a public school teacher, a person in authority,

against a wall divider, while engaged in the performance of duty is direct
assault. Accused initiated her tirades against the teacher. The fact that the
teacher retaliated by similar verbal invectives against the accused, does not
mean that she as a person in authority already descended to the level of a
private person. If the victim suffered abortion, the offender is liable for complex
crime of direct assault with unintentional abortion since single act of
assaulting a person in authority constitutes two crimes. However, in this case,
the prosecution failed to prove that the proximate cause of the abortion is the
commission of direct assault since no doctor, who examined her, was not
presented as witness to testify on the causal connection between the two (Gelig
vs. People, G.R. No. 173150 July 28, 2010, ).

51. Evasion - In evasion of service of sentence, the accused must be a

convicted prisoner and not merely a detention prisoner. In delivery of prisoner
from jail, the person, who escaped through the help of the accused, is either a
detention prisoner or convicted prisoner. In infidelity in the custody of
prisoner, the person, who escaped in connivance with or consent of or through
negligence of the accused-custodian, is either a detention prisoner or convicted
prisoner. Evasion in the service of sentence and delivery of prisoner from jail
are committed by means of dolo. Infidelity in the custody or prisoner is
committed by means of dolo or culpa; if this crime is committed by means of
dolo, it is called conniving with or consenting to evasion; if committed by
means of culpa, it is called evasion through negligence.

Brother of a detention prisoner and convicted prisoner bribed the clerk of

court to falsify release order and their custodians to release his brothers.
Convicted prisoner but not the detention prisoner is liable for evasion of service
of sentence. Brother and clerk of court are liable for delivery of prisoner from
jail with respect to the escape of detention prisoner and convicted prisoner.
Custodians are liable for infidelity in the custody of prisoners with respect to
the escape of detention prisoner and convicted prisoner. Brother is liable for
two counts of corruption of public officer. Clerk of court and custodians are
liable for direct bribery. Clerk of court and brother are liable for falsification of
document as principal by direct participation and as principal by inducement,
respectively.

52. Bribery - Plaintiff gave money to the judge, who in consideration thereof
subsequently rendered an unjust decision in favor of the former. The judge is
liable of direct bribery and rendering unjust decision, while the plaintiff is
liable of corruption of public officer. But if the plaintiff gave money to the judge,
who subsequently rendered a decision against the former, the crime committed
by the judge is indirect bribery while the plaintiff is liable of corruption of
public officer. The judge is not liable of direct bribery since rendering a decision
against the corruptor indicates that the former did not receive the money in
consideration of rendering a decision in favor of the latter. It seems that the
plaintiff merely gave the money to the judge by reason of his position as such.

53. Abortion and infanticide – If the fetus is killed inside the womb of his
mother, the crime is abortion regardless of whether he is viable or not (People
vs. Paycana, Jr. G.R. No. 179035, April 16, 2008; People vs. Salufrania, G.R.
No. L-50884, March 30, 1988). If the victim is killed outside the womb of the
mother, the crime is: (1) abortion if the victim is not viable e.g. intrauterine life
is only 6 months (People vs. Detablan, 40 O.G. No. 9, p. 30; People vs.
Paycana, Jr. G.R. No. 179035, April 16, 2008); or (2) infanticide, if the victim is
viable e.g. his intrauterine life is more than 6 months and his life is less than 3
day old; or (3) murder if the victim is viable and his life is 3 day old or more.

If the accused maltreated his wife and as a consequence, his wife and
unborn child died, the crime committed is compound crime of parricide and
unintentional abortion (People vs. Robinos, G.R. No. 138453, May 29, 2002;
People vs. Villanueva, G.R. No. 95851, March 01, 1995). If the accused
maltreated his pregnant wife and as a consequence, his wife died, and his child
was expelled, and died thereafter within 3 days, the crime committed is
compound crime of parricide and infanticide. If the accused maltreated his
pregnant wife and as a consequence, his wife died, and his child was expelled,
and died thereafter on the third day, the crime committed is compound crime
of double parricides.

In abortion and infanticide, concealment of dishonor is a special

mitigating circumstance that can be appreciated in favor of the mother and
maternal grandparents but not in favor of the father or fraternal grandparents.

54. Parricide - In parricide, if the victim is his parent or child, the relationship
can either be legitimate or illegitimate; if the victim is the spouse, grandparent
or grandchild, the relationship must be legitimate (People vs. Gamez, GR No.
202847, October 23, 2013). Relationship in parricide is by blood except where
the victim is spouse (Regalado). The qualifying circumstance of relationship in
parricide is personal. Hence, it can be appreciated against the wife but not
against a co-conspirator, who is not related to her husband, the victim (People
vs. Bucsit G.R. No. 17865, March 15, 1922).

55. Death under exceptional circumstance -Death under exceptional

circumstance is a not crime but a defense (People vs. Puedan, G.R. No.
139576, September 2, 2002), or an absolutory cause (People vs. Talisic, G.R.
No. 97961, September 05, 1997) since instead of imposing the penalty for
parricide, murder or homicide, the accused shall only suffer destierro, which is
just a measure designed to protect accused from acts of reprisal principally by
relatives of the victim (People vs. Araquel, G.R. No. L-12629, December 9,
1959). Hence, death under exceptional circumstance is not a felony within the
contemplation of Article 4 (People vs. Abarca, G.R. No. 74433, September 14,
1987) and aggression under exceptional circumstance is not an unlawful
aggression within the contemplation of self-defense (US vs. Merced, G.R. No.
14170, November 23, 1918).

Under Article 423 of the old Penal Code, death under exceptional
circumstance is committed if the husband surprised his wife in the act of
adultery (en adulterio a su mujer). Adultery under this Code is committed by a
“married woman” who shall have sexual intercourse with a “man” not her
husband. The Revised Penal Code extended the benefit of the original Article
423 of the Penal Code to both husband and wife, and for this reason, the
phrase “in the act of adultery” was changed to “in the act of committing sexual
intercourse.” (Opinion of Justice Laurel in People v. Gonzales, G.R. No. 46310,
October 31, 1939) Thus, the phrase “in the act of committing sexual intercourse”
in Article 247 of the Revised Penal Code should be interpreted within the
Spanish context of adulterio, which excludes homosexual intercourse between
a wife and another woman.

A wife, who killed her husband after having surprised him in the act of
sodomizing a gay, is liable for parricide. This is not death under exceptional
circumstance since “sodomizing” is not within the contemplation of the term
“sexual intercourse” in Article 247. However, passion may be appreciated as a
mitigating circumstance.

Killing his mistress after surprising in the act of committing sexual

intercourse with a man is not death under exceptional circumstance (U.S. vs.
Versola, G.R. No. 10759, January 25, 1916). The offender in Article 247 must
be a “legally married person.” Killing his wife under the circumstance indicating
that she had just finished having sexual intercourse with another man is not
death under exceptional circumstance. He did not catch his wife in the very act
of sexual intercourse, but after such act (People vs. Gonzales, G.R. No. 46310,
October 31, 1939).

Accused saw his wife was rising up with a man, who was standing and
buttoning his drawers. Completely obfuscated, accused killed his wife. The
circumstance indicates that she had just finished having sexual intercourse
with another man. This is not death under exceptional circumstance since he
did not catch his wife in the very act of carnal intercourse, but after such act.
(People v. Gonzales, G.R. No. 46310, October 31, 1939).

A married woman and her paramour entered a room alone in a motel.

Thereafter, they undressed themselves and performed actual acts of lascivious
character. The husband, who caught his wife and her paramour in that act,
killed his wife. Applying the Gonzalez principle, this is not parricide under
exceptional circumstance because the husband did not surprise his wife in the
very act of sexual intercourse with her paramour. Other view – According to the
dissenting opinion of Justice Laurel in the Gonzalez case, these are death
under exceptional circumstance. The offended husband need not look on in the
meantime and wait until the very physical act of sexual intercourse takes place
to receive the benefit of provision on death under exceptional circumstance.
A married woman and her paramour videoed themselves while they are
having sexual intercourse. After a month, the husband saw the sex video of his
wife with her paramour. Out of extreme jealousy, the husband immediately
killed his wife. Applying the Gonzalez principle, this is not parricide under
exceptional circumstance since the husband did not surprise his wife in the
very act of sexual intercourse with her paramour. However, the commission of
parricide is attended by ordinary mitigating circumstance of passion.

56. Death in a tumultuous affray - The elements of Death Caused in a

Tumultuous Affray are as follows: (a) that there be several persons; (b) that
they did not compose groups organized for the common purpose of assaulting
and attacking each other reciprocally; (c) that these several persons quarreled
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; and (f) that the person or persons who
inflicted serious physical injuries or who used violence can be identified.

There is tumultuous affray when several persons quarrel and assault

each other in a confused and tumultuous manner provided that they are not
composed of groups organized for the common purpose of reciprocally
assaulting and attacking each other. (Article 251) Tumultuous affray is also
called as rumble or free-for-all fight.

The provision of death caused in tumultuous affray is a measure

designed to remedy a situation where the participant thereof, who killed the
victim, was not identified because of the confusion. Since there is uncertainty
whether those of employed violence against the deceased committed murder or
homicide, or merely physical injuries, he will be punished for death caused in a
tumultuous affray with the penalty lighter than that prescribed for murder or
homicide but graver than that for physical injuries as a form of compromise.
In Wacoy vs. People, G.R. No. 213792, June 22, 2015, Perlas Bernabe, a
tumultuous affray takes place when a quarrel occurs between several persons
and they engage in a confused and tumultuous affray, in the course of which
some person is killed or wounded and the author thereof cannot be
ascertained.

There were only two (2) persons, who picked on one defenseless
individual and attacked him repeatedly, taking turns in inflicting punches and
kicks on the poor victim. There was no confusion and tumultuous quarrel or
affray, nor was there a reciprocal aggression in that fateful incident. Since
assailants were even identified as the ones who assaulted the victim, the
latter's death cannot be said to have been caused in a tumultuous affray.

57. Rape – In rape through sexual intercourse (organ rape or penile

rape), there must be evidence to establish beyond reasonable doubt that the
perpetrator’s penis touched the labia of the victim or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of
rape by sexual intercourse. In rape by sexual assault, the perpetrator commits
this kind of rape 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. It is also called "instrument or object rape", also "gender-free rape", or
the narrower "homosexual rape" (People vs. Gaduyon, G.R. No. 181473
November 11, 2013 ).

Mental retardation of the victim, which is an element of rape, cannot be

considered if the same is not alleged in the information (People vs. Galia, G.R.
No. 222658, August 17, 2016, Perlas-Bernabe)

Statutory Rape is committed by having sexual intercourse with a woman

below twelve (12) years of age regardless of her consent, or lack of it, to the
sexual act. Proof of force, threat, or intimidation, or consent of the offended
party is unnecessary as these are not elements of statutory rape, considering
that the absence of free consent is conclusively presumed when the victim is
below the age of twelve (12). The law presumes that the offended party does not
possess discernment and is incapable of giving intelligent consent to the sexual
act. (People vs. Comboy, G.R. No. 218399, March 2, 2016, Perlas-Bernabe)

a. Absorption rule - If the accused commits rape and acts of

lasciviousness, the latter is absorbed by the former (People vs. Dy, G.R. Nos.
115236-37, January 29, 2002). But the doctrine of absorption is not applicable
to rape through sexual assault. Inserting lighted cigarette into the genital
orifice and anal orifice of the victim and raping her constitutes two counts of
rape by sexual assault and rape through sexual intercourse (People vs.
Crisostomo, GR No. 196435, January 29, 2014, ). Inserting the penis into the
mouth of the victim and into her genital orifice constitutes rape through sexual
assault and organ rape (In People vs. Espera, G.R. No. 202868, October 02,
2013).

c. Variance rule - If the crime charged is rape, but the crime proven is
acts of lasciviousness, the accused will be convicted of the latter because of the
variance rule. Acts of lasciviousness is a lesser crime, which is necessarily
included in the charge of rape. If the crime charged is rape through sexual
intercourse, but the crime proven is rape through sexual assault, the accused
cannot be convicted of the latter. The variance rule is not applicable since rape
through sexual assault is not necessarily included in the charge of rape
through sexual intercourse. The elements of these two crimes are materially
and substantially different. In such case, the accused will be convicted of acts
of lasciviousness, which is necessarily included in the charge of rape through
sexual intercourse (People vs. Pareja, GR No. 202122, January 15, 2014;
People vs. Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R.
No. 183652, February 25, 2015).

The evidence of the prosecution failed to establish that Edwin had

carnal knowledge of AAA (4 years old). Michael's testimony did not show that
Edwin had carnal knowledge with AAA. He only testified that he saw Edwin
holding AAA's vagina. Under the variance doctrine, even though the crime
charged against the accused was for rape through carnal knowledge, he can
be convicted of the crime of acts of lasciviousness committed against a child
subjected to sexual abuse under 12 years of age under the Revised Penal Code
in relation to RA No. 7610 without violating any of his constitutional rights
because said crime is included in the crime of rape (People vs. Dagsa, G.R. No.
219889, January 29, 2018).

In the information for rape, it was alleged that rape committed thru
force and intimidation. But the evidence shows that the victim was under the
state of unconsciousness. However, the information, which fails to allege that
the offense was committed while the victim was unconscious, is deemed cured
by the failure of the accused to question before the trial court the sufficiency
of the information or by his failure to object to the presentation of evidence
tending to establish that the crime was committed through such means.
Apparently, accused participated in the trial without raising any objection to
the prosecution's evidence. Besides, the victim’s unconsciousness was the
direct result of the force employed by accused when he boxed the former on
her stomach (People vs. Lagangga, G.R. No. 207633 December 9, 2015, ).

c. Withdrawal of consent - Where the woman consents, but then

withdraws her consent before penetration, and the act is accomplished by
force, it is rape. (People v. Butiong, G.R. No. 168932, October 19, 2011) But if
the woman tacitly consents to have sexual intercourse with the accused, but
then withdraws her consent in the course of sexual intercourse because she
felt pain, and the act is not rape. It would be unfair to convict a man of rape
committed against a woman who, after giving him the impression thru her
unexplainable silence of her tacit consent and allowing him to have sexual
contact with her, changed her mind in the middle and charged him with rape
(People vs. Tionloc, G.R. No. 212193, February 15, 2017).
d. Stealthing - Where a woman offers to allow a man to have
intercourse with her on certain conditions and he refuses to comply with the
conditions, but accomplishes the act without her consent, he is guilty of rape.
(People v. Butiong, supra)

Stealthing is the removal of condom by the man during sex without

consent of the woman. In Germany, stealthing is a crime, which is different
and distinct from rape. In sum, stealthing under German Law is not within
the contemplation of the word “rape.”

In our country, there is no crime of stealthing in the book of statutes.

Moreover, stealthing is not equivalent to rape since lack of consent as an
element of this crime pertains to sex and not to the removal of the condom.
Nullum crimen, nulla poena sine lege. However, if the woman expressly and
categorically required the use of condom as a condition to sex, and made it
clear that she would not give her consent to a sexual intercourse without a
condom, stealthing may constitute fraudulent machination, which is a mode
of committing rape. But absolute lack of consent must be shown to make the
man liable for rape through fraudulent machination. If the woman failed to
resist the continued sex, or register a strong objection upon knowing that the
man already removed the condom from his penis, rape must be ruled out.
Rape is a serious crime punishable by reclusion perpetua. Hence, the acts
committed by the accused must be clearly within the contemplation of the
statute on rape; otherwise, he must be acquitted of rape based on the pro reo
principle.

e. 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). Indeed, failure to offer tenacious resistance does not make the
submission by the victim to the criminal acts of the accused voluntary. What
is necessary is that the force employed against her be sufficient to
consummate the purpose which he has in mind (People vs. Olesco, G.R. No.
174861 April 11, 2011, ; People vs. Nachor, G.R. No. 177779, December 14,
2010, ). Failure to shout should not be taken against the victim (People vs.
Rivera, GR No. 200508, September 04, 2013; People vs. Rubio, G.R.
No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20,
2013). It is not necessary for the victim to sustain physical injuries. She need
not kick, bite, hit or scratch the offender with her fingernails to prove that she
had been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).
Well-settled is the rule that where the victim is threatened with bodily injury,
as when the rapist is armed with a deadly weapon, such as a pistol, knife, ice
pick or bolo, such constitutes intimidation sufficient to bring the victim to
submission to the lustful desires of the rapist (G.R. No. 176740 June 22,
2011, People v. Dumadag).

f. Qualifying circumstance - If the relationship between the accused

and the victim of rape is uncle and niece, the Information must allege that the
offender is “a relative by consanguinity or affinity within the third civil degree”
because there are niece-uncle relationships which are beyond the third civil
degree.  However, a sister-brother relationship is obviously in the second civil
degree.  Consequently, it is not necessary that the Information should
specifically state that the accused is a relative by consanguinity within the
third civil degree of the victim (People vs. Ceredon, G.R. No. 167179, January
28, 2008).

Knowledge of the mental disability of the victim is not an element of rape

(People vs. Caoile, GR No. 203041, June 5, 2013) but it is an ingredient of the
qualifying circumstance of mental disability, which must be alleged in the
information (People vs. Obogne, GR No. 199740, March 24, 2014; People vs.
Lascano, G.R. No. 192180, March 21, 2012; People v. Madeo, G.R. No. 176070
October 2, 2009, )

In qualifying circumstances of minority and relationship in rape and

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

g. Marital rape - Husband can be held liable for marital rape. Article
266-A of RPC uses the term “man” in defining rape without regard to the
rapist’s legal relationship with his victim. Under Article 266-C of RPC, in case it
is the legal husband who is the offender, the subsequent forgiveness by the
wife as the offended party shall extinguish the criminal action. RA No. 8353
has eradicated the archaic notion that marital rape cannot exist because a
husband has absolute proprietary rights over his 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).
 h. Pruna guidelines - The Pruna guidelines in appreciating age, either
as an element of the crime or as a qualifying circumstance, are as follows.

1. The best evidence to prove the age of the offended party is an original
or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic

documents such as baptismal certificate and school records which show the
date of birth of the victim would suffice to prove age. 

3. If the certificate of live birth or authentic document is shown to have

been lost or destroyed or otherwise unavailable, the testimony, if clear and
credible, of the victim’s mother or a member of the family either by affinity or
consanguinity who is qualified to testify on matters respecting pedigree such
as the exact age or date of birth of the offended party pursuant to Section 40,
Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances: 

a. If the victim is alleged to be below 3 years of age and what is sought

to be proved is that she is less than 7 years old; 

b. If the victim is alleged to be below 7 years of age and what is sought

to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought

to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the

testimony of the victim’s mother or relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is expressly and clearly
admitted by the accused. 

5. It is the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the testimonial evidence
regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age
of the victim People vs. Albalate, G.R. No. 174480 December 18, 2009, ).

i. Maria Clara rule - The Maria Clara or women’s honor doctrine is a

standard used by the court in assessing the credibility of a rape victim. Under
this principle, women of decent repute, especially Filipinos, would not publicly
admit that she has been sexually abused, unless that is the truth, for it is her
natural instinct to protect her honor. However, the factual setting in 1960
when the "women's honor" doctrine surfaced in our jurisprudence is that it is
natural for a woman to be reluctant in disclosing a sexual assault. However,
the women today have over the years transformed into a strong and
confidently intelligent and beautiful person, willing to fight for her rights.
Thus, in assessing the credibility of a rape victim, the Maria Clara standard
should not be used. The testimony of the victim must be evaluated without
gender bias or cultural misconception. It is important to weed out the Maria
Clara notions because an accused may be convicted solely on the testimony of
the victim (People vs. Amarela, G.R. Nos. 225642-43, January 17, 2018, the
Supreme Court, Third Division).

j. Criminal touching - Touching of either labia majora or labia minora of

the pudendum of the victim by an erect penis of the accused capable of
penetration consummates the crime (People vs. Campuhan, G.R. No. 129433,
March 30, 2000; People vs. Butiong, G.R. No. 168932, October 19, 2011,
Bersamin). Touching the labia by instrument or object (such as tongue or
finger) also consummates the crime of rape through sexual assault (People vs.
Bonaagua, GR No. 188897, June 6, 2011).
 If the offender touches the body of the victim through force, without
touching the labia of her pudendum but with clear intention to have sexual
intercourse, the crime committed is attempted rape. Intent to have sexual
intercourse is present if is shown that the erectile penis of the accused is in the
position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014) or
the accused actually commenced to force his penis into the victim's sexual
organ (People vs. Banzuela, G.R. No. 202060, December 11, 2013).

For there to be an attempted rape, the accused must have commenced

the act of penetrating his sexual organ to the vagina of the victim but for some
cause or accident other than his own spontaneous desistance, the penetration,
however, slight, is not completed (People vs. Bandril, G.R. No. 212205, July 06,
2015).

If the offender touches the body of the victim through force, with lewd
design but without clear intention to have sexual intercourse, the crime
committed is acts of lasciviousness. Kissing and undressing the victim (People
vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her vagina by the
hand of the accused (People vs. Banzuela, G.R. No. 202060, December 11,
2013), touching the breast and thighs of victim and kissing her (People vs.
Victor, G.R. No. 127904, December 05, 2002); or rubbing his penis on the
mons pubis of the pudendum (People vs. Abanilla, G.R. Nos. 148673-75,
October 17, 2003) is merely acts of lasciviousness because intent to have
sexual intercourse is not clearly shown, but lewd design is established.

In People vs. Dadulla, G. R. No. 172321, February 9, 2011, the

accused's act of opening the zipper and buttons of AAA's shorts, touching her,
and trying to pull her from under the bed manifested lewd designs, not intent
to lie with her. The evidence to prove that a definite intent to lie with AAA
motivated the accused was plainly wanting, therefore, rendering him guilty
only of acts of lasciviousness

In Cruz vs. People, G.R. No. 166441, October 08, 2014, touching her
genitalia with his hands and mashing her breasts are "susceptible of double
interpretation." These circumstances may show that the intention of the
accused is either to commit rape or simple seduction (or acts of lasciviousness).
Since intent to have sexual intercourse is not clear, accused could not be held
liable for attempted rape. Hence, he is only liable for acts of lasciviousness.

If the offender touches the body of the victim without lewd design or
without clear intention to satisfy lust, the crime committed is unjust vexation.

In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November 29, 1967,
accused kissed and embraced his co-teacher while the latter was conducting
her class. The factual setting, i.e., a schoolroom in the presence of
complainant's students and within hearing distance of her co-teachers, rules
out a conclusion that the accused was actuated by a lustful design. The crime
committed is merely unjust vexation.

In People vs. Sumingwa, G.R. No. 183619, October 13, 2009, embracing,
dragging and kissing in front of her friend constitute unjust vexation.

58. Perjury - Person cannot be held liable for perjury involving a

complaint affidavit for theft based on the execution of affidavit of desistance.
There is no perjury solely on the basis of two contradictory statements. The
prosecution must additionally prove which of the two statements is false and
must show the statement to be false by evidence other than the contradictory
statement (U.S. vs. Capistrano 40 Phil. 902; Masangkay vs. People, G.R. No.
164443, June 18, 2010).
 In a verified answer, accused denied the allegation in the complaint for
collection on his loan obligation. He is not liable for perjury since verification is
not required in answer in a civil case. He cannot be prosecuted for perjury on
the basis of an alleged falsehood made in a verified pleading, which is not
mandated by law to be verified (Saavedra, Jr. vs. Department of Justice, G.R.
No. 93178, September 15, 1993; Flordelis vs. Himalaloan, G.R. No. L-48088,
July 31, 1978).

The fact that subornation of perjury is not expressly penalized in RPC

does not mean that the direct induction of a person by another to commit
perjury has ceased to be a crime, because said crime is fully within the scope
of provision on principal by inducement (People vs. Pudol, G.R. No. 45618,
October 18, 1938).

Making untruthful statement (failure to disclose previous criminal

conviction) in a sworn application for the patrolman examination constitutes
perjury (People vs. Cruz, 108 Phil. 255). Making untruthful statement (failure
to disclose pending criminal case) in unsworn PDS constitutes falsification of
document (Sevilla vs. People, G.R. No. 194390, August 13, 2014). If there are
several mistakes the PDS including those which are not important, accused
cannot be convicted of falsification of document since it appears that failure to
disclose pending criminal case is not deliberate. Hence, accused is only liable
for reckless imprudence resulting in falsification (Sevilla vs. People, supra).

Making it appears that a person participated in an act or proceeding

where in fact he did not is not the actus reus in perjury. Hence, a mayor, who
made it appear that affiants swore and signed the affidavit before him where in
fact they did not, is liable of falsification of document and not perjury
(Lonzanida vs. People, G.R. Nos. 160243-52, July 20, 2009).

59. Falsification – Prosecution need not identify a specific law under

which the accused has the obligation to disclose the truth. To convict the
accused for falsification of document involving making an untruthful
statement, what is important is that he has a legal obligation to disclose the
truth. In Manansala vs. People, G.R. No. 215424, December 9, 2015, the
accused made an untruthful statement in petty cash replenishment report of a
private corporation. The accused was convicted of falsification of private
document because he has a legal obligation to disclose the truth in a report.

Commercial documents such as promissory note and check are, in

general, documents or instruments which are "used by merchants or
businessmen to promote or facilitate trade or credit transactions (Tanenggee
vs. People, G.R. No. 179448 June 26, 2013).

Falsification of a public document is consummated upon the execution of

the false document. What is punished in falsification of public document is
principally the undermining of the public faith and the destruction of truth as
solemnly proclaimed therein. The fact that accused did not benefit from, or that
the public was not prejudiced by the falsified resolution is not a defense (Goma
vs. CA, G.R. No. 168437, January 08, 2009).

When the offender commits falsification of public, official or commercial

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

When the offender commits on a public, official or commercial document

any of the acts of falsification enumerated in Article 171 as a necessary means
to commit another crime like estafa, theft or malversation, the two crimes form
a complex crime proper (Tanenggee vs. People, G.R. No. 179448 June 26,
2013).

The falsification of a public, official, or commercial document may be a

means of committing estafa, because before the falsified document is actually
utilized to defraud another, the crime of falsification has already been
consummated, damage or intent to cause damage not being an element of the
crime of falsification of public, official or commercial document. In other
words, the crime of falsification has already existed. Actually utilizing that
falsified public, official or commercial document to defraud another is estafa.
But the damage is caused by the commission of estafa, not by the falsification
of the document. Therefore, the falsification of the public, official or
commercial document is only a necessary means to commit estafa (Tanenggee
vs. People, G.R. No. 179448 June 26, 2013, ; People v. Go, G.R. No. 191015,
August 6, 2014).

Presenting to the complainant a falsified BIR receipt to make it appears

that accused paid the capital gains tax for the real property bought by the
former constitutes complex crime of estafa through falsification of document
(Pascual vs. People, G.R. No. 204873, July 27, 2016).

When the offender commits falsification of public, official or commercial

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

If the falsification of a private document (demand letter, letter of

guarantee) is committed as a means to commit estafa, the crime committed is
falsification only. Under the common element doctrine, the use of damage as
an element in falsification of private document precludes the re-use thereof to
complete the elements of estafa. Hence, estafa is not committed because the
element of damage is not present (Batulanon vs. People, G.R. No. 139857,
September 15, 2006); U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917;
People vs. Reyes, G.R. No. L-34516, November 10, 1931). There is no complex
crime of estafa through falsification of private document.

If a person commits falsification of private document to conceal estafa,

the crime is estafa only. Under the common element doctrine, the use of
damage as an element in estafa precludes the re-use thereof to complete the
elements of falsification. Hence, estafa is not committed because the element of
damage is not present (See: People vs. Beng, 40 O.G. 1913).

In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015, the

Governor caused the falsification of private letter requesting for financial
assistance. He was able to use this falsified private document to release public
funds to a fictitious beneficiary. Applying Article 48, since falsification of
private document is a necessary means to commit malversation, he is liable for
complex crime of malversation through falsification of private document.

The Supreme Court in Zoleta did not apply the doctrine of “common
element.” It should be noted that damage is not an element of malversation;
hence, there is no element common to malversation and falsification of private
document.

61. Malversation - For purpose of malversation, national officer shall be

considered as an accountable officer if he has custody or control of public
property by reason of the duties of his office (Government Auditing Code of the
Philippines. The Local Government Code expanded the concept of accountable
local officer. Local officer shall be considered as an accountable officer if he has
possession or custody of local government funds because of the nature of their
functions such a treasure or has participated in the use or application of
thereof (Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015) such as a
mayor, whose signature is needed to disburse municipal funds (Manuel vs.
Hon. Sandiganbayan, G.R. No. 158413, February 08, 2012).

Malversation is committed either intentionally or by negligence.

The dolo or the culpa is only a modality in the perpetration of the felony. Even
if the mode charged differs from the mode proved, the same offense of
malversation is still committed (Mesina vs. People, G.R. No. 162489, June 17,
2015).

62. Failure to render an accounting - In People vs. Lumauig, G.R.

No.166680, July 7, 2014, the accused received cash advance for payment of
the insurance coverage of motorcycles purchased by the Municipality in 1994.
Under COA Circular, accused is required to liquidate the same within 20 days
after the end of the year or on or before January 20, 1995. To avoid criminal
liability under Article 218 of the Revised Penal Code, he must liquidate the
cash advance within two months from January 20, 1995 or on or before
March 20, 1995. The accused was liable for failure to render account 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.

Same as in malversation, the offender in failure to render accounting

under Article 218 of RPC is also an accountable officer (People vs. Lumauig,
G.R. No.166680, July 7, 2014,). If an accountable officer misappropriated the
cash advance that he received, the crime committed is malversation (People
vs. Icdang, G.R. No. 185960, January 25, 2012; People vs. Devalos, G.R. No.
145229, April 20, 2006). However, if an accountable officer did not
misappropriate the cash advance since he was able to account the same, but
the accounting was delayed for more than two months after such accounts
should be rendered, the crime committed is failure to render an accounting
(People vs. Lumauig, supra).

Same as in malversation, return of the money in the amount in which

the accountable officer failed to render an accounting is a mitigating
circumstance analogous to voluntary surrender (People vs. Lumauig, G.R.
No.166680, July 7, 2014, ).

63. Estafa –In offenses against property (theft or estafa), if the subject matter
of the offense is generic and not identifiable (e.g. money), an error in the
designation of the offended party is fatal. However, if the subject matter of the
offense is specific and identifiable (e.g. check or jewelry), an error in the
designation of the offended party is immaterial (Senador vs. People, G.R. No.
201620, March 06, 2013). In oral defamation, a crime against honor, the
identity of the person against whom the defamatory words were directed is a
material element. Thus, an erroneous designation of the person injured is
material (People vs. Uba, 106 Phil. 332).

Demand is not an element of estafa through misappropriation. Demand

is only important if there is no direct evidence of misappropriation because
failure to account for the property in trust upon demand is circumstantial
evidence of misappropriation. In this connection, verbally inquired about the
money entrusted to the accused is tantamount to a demand (Asejo vs. People,
G.R. No. 157433, July 24, 2007; (People v. Go, G.R. No. 191015. August 6,
2014, ). On the other hand, demand is not necessary where there is direct
evidence of misappropriation (People vs. Arambulo, G.R. No. 186597, June 17,
2015; (People v. Go, G.R. No. 191015. August 6, 2014, ). This rule on demand
is applicable to malversation (Munib vs. People, G.R. Nos. 163957-58, April 07,
2009).

Where the borrower is importers acquiring goods for resale, goods sold in
retail are often within his custody until they are purchased. This is covered by
trust receipt agreement. Failure to return the unsold good or deliver the
proceeds of sale to the bank is estafa in relation to PD No. 115 (Trust Receipt
Law). Where the borrower is engaged in construction, the materials are often
placed under custody of his clients, who can only be compelled to return the
materials if they fail to pay. Since the bank and the contractor know that the
return of the materials is not possible, this is not covered by trust receipt
agreement. This transaction becomes a mere loan, where the borrower is
obligated to pay the bank the amount spent for the purchase of the goods. The
accused is not liable for estafa because of the constitutional provision of non-
imprisonment for nonpayment of debts (Yang vs. People, G.R. No. 195117,
August 14, 2013).

In other forms of swindling under Article 316, (1) and (2) of RPC, offender
made false representation involving real property and act of ownership such as
selling it, which causes damage to third person. In paragraph 1, the accused
represents that he owned the property, while in paragraph 2, he expressly
represents in the deed of conveyance that the property is “free from
encumbrance” (Estrellado-Mainar vs. People, G.R. No. 184320, July 29, 2015)
or "como libre". These words "como libre" in the Spanish Penal Code are
deemed incorporated in the RPC (Naya vs. Abing, G.R. No. 146770, February
27, 2003).

64. Theft - To "take" under theft the Revised Penal Code does not require
asportation or carrying away (Medina vs. People, G.R. No. 182648, June 17,
2015). It is not an indispensable requisite of theft that a pickpocket should
carry, more or less far away, a wallet taken from its owner (People vs. Mercado,
G.R. Nos. L-45471 and L-45472, June 15, 1938).

The term "personal property" in RPC should be interpreted in the context

of the Civil Code. Consequently, any personal property, tangible or intangible,
corporeal or incorporeal, capable of appropriation can be the object of theft.
Business may be appropriated under Bulk Sales Law. Thus, the business of
providing telecommunication and the telephone service is a personal property
(Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009). Since asportation is
not an element of theft, a personal property can to be the object of theft as
along as it is capable of appropriation although it is not capable of
"asportation" (Medina vs. People, G.R. No. 182648, June 17, 2015). Intangible
property is not capable of asportation, and yet, it can be an object of theft since
is capable of asportation.

If the property is tangible, taking is deemed complete from the moment

the offender gains possession over the thing, even if he has no opportunity to
dispose of the same (People vs. Bustinera, G. R. No. 148233, June 8, 2004). If
the property is intangible, taking includes controlling the destination of this
property stolen to deprive the owner of the property (e.g. the use of a meter
tampering, use of a device to fraudulently obtain gas, and the use of a jumper
to divert electricity). Using device to control the destination of international
telephone call under the telecommunication system of PLDT without its
consent to earn by charging user of the phone at the expense of PLDT is taking
the property of PLDT of providing telecommunication service (Laurel vs.
Abrogar, supra).

a. No frustrated theft - If the bulky goods are taken by the accused

inside a compound (such as SM), theft is consummated even if the accused
failed to bring out the stolen goods from the compound, which makes him
unable to freely dispose it. Inability to dispose the stolen property is not an
element of theft. Unlawful taking is the element which produces the felony in
its consummated stage. Without unlawful taking, the offense could only be
attempted theft, if at all. Thus, theft cannot have a frustrated stage (Valenzuela
vs. People, G. R. No. 160188, June 21, 2007). If the accused is charged with
frustrated theft, he could not be convicted of the crime charged because theft
has no frustrated stage. Neither could he be convicted of consummated theft
since it was not alleged in the information. But he could be convicted of
attempted theft because this is a lesser crime, which is necessarily included in
the charge of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01,
2015).

b. Qualified Theft - Theft becomes qualified when it is, among others,

committed with grave abuse of confidence. The grave abuse of confidence
must be the result of the relation by reason of dependence, guardianship, or
vigilance, between the appellant and the offended party that might create a
high degree of confidence between them which the appellant abused (People
vs. Tanchanco, G.R. No. 177761 April 18, 2012, ).

An employee, who took company property, is liable for qualified theft if

the stolen properties are accessible to him (Zapanta vs. People, G.R. No.
170863, March 20, 2013) because of the circumstance of abuse of confidence
(Yongco vs. People, G.R. No. 209373, July 30, 2014). Making the property
accessible to the employee is an indication that the employer has confidence
on him that he will not steal the property. The employee abused such
confidence by stealing it.

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. Making the
property non-accessible to the employee is an indication that the employer has
no confidence on him that he will not steal the property (Viray vs. People, G.R.
No. 205180, November 11, 2013).

c. Value of the property - The value of jewelry is not a matter of public

knowledge nor is it capable of unquestionable demonstration and in the
absence of receipts or any other competent evidence besides the self-serving
valuation (P1 million) made by the complainant, the courts may either apply
the lowest penalty under Article 309 or fix the value of the property taken
based on the attendant circumstances of the case. In this case, the court
imposed the lowest penalty (People vs. Mejares, G.R. No. 225735, January 10,
2018).

d. Lost property - Any person who, having found lost property, shall fail
to deliver the same to the local authorities or to its owner, is liable for theft. If
the finder surrenders the property found to a policeman, who fails to deliver it
the owner, the policeman is liable for theft. He acquired the position occupied
by the actual finder. Appropriating the property is of the same character of that
made by one who originally found the same (People vs. Avila, G.R. No. L-19786,
March 31, 1923).

65. Theft through misappropriation

a. Physical possession - If the accused received the property with the

consent of the owner but he merely acquired physical possession in doing so,
misappropriation shall be considered as taking without consent; hence, the
crime committed is theft (U.S. v. De Vera, G.R. No. L-16961, September 19,
1921) or qualified theft (People v. Tanchanco, G.R. No. 177761 April 18,
2012, ).

A franchise holder must personally operate the motor vehicle. That is the
reason why government regulation prohibits operator of motor vehicle from
leasing it. In the eye of the law the driver of taxi or passenger jeepneyunder
boundary arrangement was only an employee of the owner rather than a
lessee. For being an employee, his possession of the jeepney is physical (People
v. Isaac G.R. No. L-7561, April 30, 1955), and thus, misappropriation thereof is
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).

In Benabaye vs. People, G.R. No. 203466, February 25, 2015, Perlas-
Bernabe, a sum of money received by an employee on behalf of an employer is
considered to be only in the material possession of the employee. The material
possession of an employee is adjunct, by reason of his employment, to a
recognition of the juridical possession of the employer. So long as the juridical
possession of the thing appropriated did not pass to the employee-perpetrator,
the offense committed remains to be theft, qualified or
otherwise. Hence, conversion of personal property in the case of
an employee having mere material possession of the said property constitutes
theft, whereas in the case of an agent to whom both material and juridical
possession have been transferred, misappropriation of the same property
constitutes Estafa.

There is an essential distinction between the possession of a receiving

teller of funds received from third persons paid to the bank, and an agent who
receives the proceeds of sales of merchandise delivered to him in agency by his
principal. In the former case, payment by third persons to the teller is payment
to the bank itself; the teller is a mere custodian or keeper of the funds received,
and has no independent right or title to retain or possess the same as against
the bank. An agent, on the other hand, can even assert, as against his own
principal, an independent, autonomous, right to retain the 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.

b. Legal possession - If the accused received the property with the

consent of the owner and he acquired legal possession in doing so by virtue of
trust, commission, administration or obligation involving the duty to make
delivery or return such as lease, deposit, commodatum, or quasi-contract,
misappropriation shall be considered as estafa through conversion or
misappropriation (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle
vs. People, G.R. No. 174181, June 27, 2012).

In Cheng vs. People, G.R. No. 174113, January 13, 2016, Perlas-
Bernabe, complainant delivered the jewelry to accused for the purpose of
selling them on commission basis. Accused was required to either remit the
proceeds of the sale or to return the jewelry after one month from delivery.
Accused failed to do what was required of her despite the lapse of the aforesaid
period. The accused issued a check representing the return of the proceeds of
sale, which was dishonored. However, in testifying on the delivery of the
unfunded check, complainant erroneously used the words "payment" and
"paid". The defense argued “receipt of property in trust by reason of agency,”
which is an element estafa through misappropriation is not present since the
transaction is sale, which is established by admission or by using the words
“payment” and “paid.” SC rejected the argument. The erroneous use of the
words "payment" and "paid" by the complainant (who does not know the
technical meaning thereof) will not change the nature of her transactions from
an agency to a contract of sale. Hence, accused is liable for estafa through
misappropriation.

As a rule, the possession of the employee such as bank teller, collector

or cash custodian is only physical. Hence, misappropriation of property is
qualified theft. Abuse of confidence is present since the property is accessible
to the employee (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; People
vs. Tanchanco, G.R. No. 177761 April 18, 2012, ). However, if the employee is
an officer of the company with discretion on how to use property or fund of the
company to further its interest, his possession is juridical; hence,
misappropriation thereof is estafa. Thus, the following officers are liable for
estafa for misappropriating company property: a. A bank president who held
the money in trust or administration for the bank in his fiduciary capacity
with discretion on how to administer such fund (People vs. Go, G.R. No. 191015,
August 6, 2014); b. A corporate treasurer who received the money for safe-
keeping and administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922;
c. A corporate officer with discretion option on how to use bending machine
without the participation of the corporation (D’Aigle vs. People, G.R. No.
174181, June 27, 2012). However, in Remo vs. Devanadera, G.R. No. 192925,
December 9, 2016, the Supreme Court ruled that directors of a corporation
have no juridical possession over the corporate funds.

Misappropriation by the industrial partner of the share of the capitalist

partner (People vs. Clemente, CA, 65 OG 6892) or the partnership fund to be
used in buying and selling mango (People vs. Dela Cruz, G.R. No. 21732,
September 3, 1924) is estafa. Theft is not committed (US vs. Reyes, G.R. No.
2867, September 11, 1906) because possession of the industrial partner over
the same is juridical (People vs. Tan Tay Cuan, CA, 57 OG 6964).

In US vs. Clarin, G.R. No. 5840, September 17, 1910, four individuals

entered into a contract of partnership for the business of buying and selling
mangoes. When one of the partners demanded from the other three the return
of his monetary contribution, the Supreme Court ruled that "the action that
lies with the capitalist partner for the recovery of his money is not a criminal
action for estafa, but a civil one arising from the partnership contract for a
liquidation of the partnership and a levy on its assets, if there should be
any. Simply put, if a partner demands his money back, the duty to return the
contribution does not devolve on the other partners; the duty now belongs to
the partnership itself as a separate and distinct personality.

In 1997, a case with circumstances similar to the Clarin case was

decided differently. In Liwanag v. Court of Appeals, G.R. No. 114398 October
24, 1997, three individuals entered into a contract of partnership for the
business of buying and selling cigarettes. They agreed that one would
contribute money to buy the cigarettes while the other two would act as agents
in selling. When the capitalist partner demanded from the industrial partners
her monetary contribution because they stopped informing her of business
updates, this time, this Court held the industrial partners liable for estafa.

In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the Supreme
Court ruled that said the OCP erred gravely when it dismissed the case based
on the Clarin case, which has already been superseded by Liwanag case.
Liwanag applies to the partnership agreement executed between petitioner and
respondent. Petitioner's initial contributions were all for specific purposes: for
the buying and selling of garments and for the salaries of the factory workers,
respectively. When respondent failed to account for these amounts or to return
these amounts to petitioner upon demand, there is probable cause to hold that
respondent misappropriated the amounts and had not used them for their
intended purposes. The Information for estafa should thus proceed. Even
assuming that a contract of partnership was indeed entered into by and
between the parties, when money or property had been received by a partner
for a specific purpose and he later misappropriated it, such partner is guilty
of estafa.

c. Ownership - If the accused received the property with the consent of

the owner and he acquired ownership in doing so by virtue of a contract such
as sale, mutuum or loan, failure to perform obligation under such contract is
neither theft nor estafa since the same is purely civil in character (People vs.
Montemayor, G.R. No. L-17449, August 30, 1962).
 d. Receiving the property through deceit - If the accused received the
property through deceit but he merely acquired physical possession in doing
so, misappropriation shall be considered as taking without consent; hence,
the crime committed is theft (People vs. Maglaya, L-29243, November 28,
1969, L-29243). If the bank president received bank fund through deceit by
using falsified loan documents with fictitious borrower, and misappropriated
the money, he is liable for complex crime of complex crime of estafa through
misappropriation through falsification of commercial documents. His
possession over the funds is legal. He did not acquired ownership over the
property since he is holding the bank fund under trust or administration in
his fiduciary capacity (People vs. Go, G.R. No. 191015, August 06, 2014, ;
Soriano v. People, G.R. No. 162336 February 1, 2010, ). If a bank manager
received bank fund through deceit by using falsified promissory note with
fictitious borrower and falsified endorsement on the check issued by the bank,
he is liable for complex crime of estafa through false pretense through
falsification of commercial documents (Tanenggee v. People, G.R. No. 179448,
June 26, 2013, ). If a bank employee stole blank cashier check, falsified the
authorized signatory of the check, and received money from the bank through
deceit by presenting the falsified check for encashment, he is liable for
complex crime of qualified theft through falsification of commercial document.
Deceit shall be considered as a continuation and natural development of the
theft, which was previously committed (People vs. Salonga, G.R. No.
131131, June 21, 2001).

The bank president in addition to the charge of estafa by

misappropriation through falsification of document can be charged with DOSRI
violation. Under Section 83 of RA 337, DOSRI violation can committed by
officer of the bank by borrowing either directly or indirectly, from the bank. In
this case, the president borrowed indirectly from the bank by making a
fictitious loan (Soriano v. People, G.R. No. 162336 February 1, 2010, ).

65. Syndicate estafa - The elements of Syndicated Estafa are: (a) Estafa or

other forms of swindling, as defined in Articles 315 and 316 of the RPC,, is
committed; (b) the Estafa or swindling is committed by a syndicate of five (5)
or more persons; and (c) defraudation results in the misappropriation of
moneys contributed by stockholders, or members of rural banks, cooperative,
samahang nayons, or farmers’ associations, or of funds solicited by
corporations/associations from the general public. (People vs. Tibayan, G.R.
No. 209655-60, January 14, 2015, Perlas-Bernabe)

In People vs. Tibayan, supra - TGICI’s modus operandi of inducing the

public to invest in it on the undertaking that their investment would be
returned with a very high monthly interest rate ranging from three to five and a
half percent (3%-5.5%). Under such lucrative promise, the investing public are
enticed to infuse funds into TGICI. However, as the directors/incorporators of
TGICI knew from the start that TGICI is operating without any paid-up capital
and has no clear trade by which it can pay the assured profits to its
investors, they cannot comply with their guarantee and had to simply abscond
with their investors’ money. Accused used TGICI to engage in a Ponzi scheme,
resulting in the defraudation of the TGICI investors.

To be sure, a Ponzi scheme is a type of investment fraud that involves

the payment of purported returns to existing investors from funds contributed
by new investors. Its organizers often solicit new investors by promising to
invest funds in opportunities claimed to generate high returns with little or no
risk. In many Ponzi schemes, the perpetrators focus on attracting new money
to make promised payments to earlier-stage investors to create the false
appearance that investors are profiting from a legitimate business.  It is not an
investment strategy but a gullibility scheme, which works only as long as there
is an ever increasing number of new investors joining the scheme. It is difficult
to sustain the scheme over a long period of time because the operator needs an
ever larger pool of later investors to continue paying the promised profits to
early investors. The idea behind this type of swindle is that the “con-man”
collects his money from his second or third round of investors and then
absconds before anyone else shows up to collect. Necessarily, Ponzi schemes
only last weeks, or months at the most. Accused, who engaged in a Ponzi
schemes, are liable for syndicated estafa.

66. Arson – Destructive arson is characterized as heinous crime; while simple

arson under PD No. 1613 is a crime manifesting a lesser degree of perversity.
Simple arson contemplates the malicious burning of property not included in
Article 320 of the RPC (People vs. Macabando, GR No. 188708, July 31, 2013).
Burning of inhabited house or dwelling or personal property is simple arson
under Section 3 of P.D. No. 1613 because it is not included in Article 320 of
RPC.

If the main objective is to kill the victim in a building, and fire is resorted
to as the means to accomplish such goal, the crime committed is murder only.
Murder qualified by means of fire absorbs arson since the latter is an inherent
means to commit the former (People vs. Cedenio, G.R. No. 93485, June 27,
1994). Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No. 168050,
September 19, 2008).

One has deliberately set fire to a building is presumed to have intended

to burn the building (People vs. De Leon, G. R. No. 180762, March 4, 2009).
Since intent to burn is presumed, intent to kill must be established beyond
reasonable doubt. Failure to show intent to kill, the accused shall be convicted
of arson with homicide and not murder (People vs. Baluntong, G.R. No.
182061, March 15, 2010).

If the main objective is to burn the building, but death results by reason
or on the occasion of arson, the crime is arson with homicide, and the resulting
homicide is absorbed (People vs. Villacorta, 172468, October 15, 2008).

If the objective is to kill, and in fact the offender has already done so, and
arson is resorted to as a means to cover up the killing, the offender may be
convicted of two separate crimes of either homicide or murder, and arson
(People vs. Cedenio, G.R. No. 93485, June 27, 1994).

67. Bigamy – After the consummation of the crime of bigamy, declaration of

nullity of first marriage and/or second marriage is not a defense on the
following grounds:

First ground - After the consummation of bigamy, subsequent

declaration of nullity of the first and/or the second marriage is not a defense
since it is not a mode of extinguishing criminal liability listed in Article 89
(Jarillo vs. People, GR No. 164435, September 29, 2009).

Bigamy is consummated upon contracting second marriage despite the

subsistence of the first marriage consummates. Once the crime consummates,
criminal liability will attach to the accused and will not be extinguished except
through a mode mentioned in Article 89 of RPC as death, pardon etc. After the
consummation of bigamy or celebration of the second marriage, the criminal
liability shall not be extinguished by subsequent events such as declaration of
nullity of marriage not mentioned in Article 89 of RPC.

Second ground - To make declaration of nullity of first marriage and/or

second marriage after the consummation of the crime of bigamy as a defense
would render the 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 liability for bigamy (Tenebro vs. The Honorable
Court of Appeals, G.R. No. 150758, February 18, 2004; Walter vs. People, GR
No. 183805, July 03, 2013).

Third ground - To avoid criminal liability, the declaration of nullity of the

first marriage must be made previous to the consummation of bigamy, which is
required by Article 40 of the Family Code that provides:  The absolute nullity of
a previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void.  A declaration
of the absolute nullity of the first marriage is now explicitly required either as a
cause of action or a ground for defense in bigamy (People vs. Teves, G.R. No.
188775, August 24, 2011). Even though the first marriage was contracted prior
to the Family Code, the rule is the same since Article 40, which is a rule of
procedure, should be applied retroactively. The reason is that as a general rule,
no vested right may attach to, nor arise from, procedural laws (Jarillo vs.
People, G.R. No. 164435, June 29, 2010).

Article 40 of the Family Code is only applicable if what is involved is

declaration of nullity of the first marriage. Hence, if what is involved is post-
bigamy declaration of nullity of the first marriage, this is not a defense because
of the first, second and third grounds. If what is involved is post-bigamy
declaration of nullity of the second marriage, this is not a defense because of
the first and second grounds.

Post-bigamy declaration of nullity of the first or second marriage is not a

defense whether the ground for nullity is psychological incapacity (Mercado vs.
Tan, G.R. No. 137110, August 1, 2000) or lack of license and affidavit of
cohabitation (Lasanas vs. People, G.R. No. 159031, June 23, 2014) or even
though the declaration is obtained before the filing of the complaint for bigamy
(People vs. Odtuhan, GR No. 191566, July 17, 2013).

Exceptions:

1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079,

the second marriage was celebrated one day before the issuance of the
marriage license. In this situation, the accused can use the voidness of the
second marriage as a defense in bigamy. The accused did not cause the
falsification of public documents in order to contract a second marriage. He did
not fraudulently secure a Certificate of Marriage, and later used this criminal
act as basis for seeking her exculpation. The crime committed is not bigamy
under Article 349 (Santiago vs. People, G.R. No. 200233, July 15, 2015) but
marriage contracted against the provisions of the law under Article 350 (People
vs. Peralta, CA-GR No. 13130-R, June 30, 1955).

The De Lara principle is only applicable if the two requisites are

applicable: (1) the accused did not did not cause the falsification of public
documents in order to contract a second marriage. As a rule, the accused
cannot use the voidness of the second marriage as a defense in bigamy
because she fraudulently secured a certificate of marriage, and that is
presenting a falsified affidavit of cohabitation instead of marriage license
(Santiago vs. People, G.R. No. 200233, July 15, 2015); and (2) the second
marriage is null and void for lack of marriage license; if the first marriage is
declared null and void due to lack of marriage license or affidavit of
cohabitation, this is not a defense because Article 40 of the Family Code
required declaration of nullity before the celebration of second marriage
(Lasanas vs. People, G.R. No. 159031, June 23, 2014).

2. The principle that “one who enters into a subsequent marriage without
first obtaining such judicial declaration is guilty of bigamy” is not applicable
where the parties merely signed the marriage contract without marriage
ceremony performed by a duly authorized solemnizing officer. The mere private
act of signing a marriage contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Hence, bigamy is not committed
(Morigo vs. People, G.R. No. 145226, February 06, 2004).

3. X contracted three marriages. His first wife is already dead when X

contracted his third marriage. X is liable for bigamy involving the second
marriage on the basis of his first marriage because the first was existing when
the contracted the second. X is not liable for bigamy involving the third
marriage on the basis of the first marriage since the first has already been
extinguished by reason of death of the first wife when he contracted the third.
X is not liable for bigamy involving the third marriage on the basis of the
second marriage since the second is null and void for being a bigamous
marriage.

68. Illegal marriage – A priest, who performed a marriage ceremony despite

knowledge that the couple had no marriage license, is liable for illegal
marriage. The law sets the minimum requirements constituting a marriage
ceremony: first, there should be the personal appearance of the contracting
parties before a solemnizing officer; and second, their declaration in the
presence of not less than two witnesses that they take each other as husband
and wife (Ronulo vs. People, G.R. No. 182438, July 02, 2014).

69. Libel - Under Article 360 of the RPC, the publisher, and editor of
newspaper, shall be responsible for the defamations contained therein to the
same extent as if he were the author thereof. The publisher and editors cannot
disclaim liability for libelous articles that appear on their paper by simply
saying they had no participation in the preparation of the same. They cannot
say that Tulfo was all alone in the publication of Remate, on which the
defamatory articles appeared. It is not a matter of whether or not they
conspired in preparing and publishing the subject articles, because the law
simply so states that they are liable as if they were the author (Tulfo vs. People,
G.R. No. 161032, September 16, 2008).

Comment is not fair if there is reckless disregard of knowing whether the

defamatory imputation is false or not. Hence, the accused cannot use the fair
comment principle as a defense. In Erwin Tulfo vs. People, G.R. No. 161032,
September 16, 2008 - Journalists bear the burden of writing responsibly when
practicing their profession, even when writing about public figures or matters
of public interest. The report made by Tulfo describing a lawyer in the Bureau
of Customs as corrupt cannot be considered as "fair" and "true" since he did
not do research before making his allegations, and it has been shown that
these allegations were baseless. The articles are not "fair and true reports," but
merely wild accusations. He had written and published the subject articles
with reckless disregard of whether the same were false or not.

In Manila Bulletin Publishing Corporation vs. Domingo, G.R. No.

170341, July 5, 2017, the accused published an article where he stated that
these national employees should be commended for bringing into the open this
garbage that has piled up in their own backyard. To Joe Con's successor, the
chopping board is ready. All you need is a Muslim kris! Palakulin mo, Pare ko!.
This is not libelous. On the first statement, accused is merely commending the
DTI employees who brought into the open their complaints against the private
complainant in this case, a DTI officer. This is a fair remark. The last three
sentences merely meant that heads should roll at the DTI office, which does
not ascribe something deprecating against complainant. Moreover, the
statement does not refer to an ascertained or ascertainable person.
In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed
a motion for reconsideration of resolution dismissing a complaint for estafa
with irrelevant and defamatory statement against the investigating prosecutor
was filed with the OCP of San Pablo City and copy furnished to the respondent
in the estafa complaint, and the Office of the Secretary of Justice. Despite the
fact that the motion was contained in sealed envelopes, it is not unreasonable
to expect that persons other than the one defamed would be able to read the
defamatory statements in it. Hence, the element of publicity in libel is present.
In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a
motion for reconsideration of resolution dismissing a complaint for estafa. The
accused alleged in the said motion the public prosecutor who dismissed the
case is corrupt, stupid, imbecile, mentally dishonest and bereft of intellectual
ability. This is not covered by the absolute privilege communication rule since
the defamatory allegations in the motion are not relevant to the issue of
whether or not the motion for reconsideration should be granted because
there is probable cause to charge the respondent in the preliminary
investigation for estafa.

70. Incriminating an innocent person - As a general rule, planting of

evidence to incriminate an innocent person constitutes the crime of
incriminating an innocent person under Article 363 of RPC. However, if the
incriminatory evidence planted is dangerous drugs or unauthorized explosives,
loose firearm or ammunition, the crime committed is planting of evidence
under RA 9165 for the dangerous drug, PD 1866 as amended by RA 9516 for
the explosive and RA No. 10591 for loose firearm.

If unlawful arrest is committed to plant incriminatory evidence, the crime

committed is complex crime of incriminating innocent person through unlawful
arrest (People vs. Alagao, G.R. No. L-20721, April 30, 1966). If incriminatory
evidence is planted to justify an unlawful arrest, the crime committed is
complex crime of unlawful arrest through incriminating an innocent person.
But if the incriminatory evidence is dangerous drugs, explosive or loose
firearm, unlawful arrest and planting of evidence are separate crimes. Complex
crime is not committed since planting of evidence, which is punishable under
special law, cannot be made a component of a complex crime.

Stealing property and planting the stolen property to impute to the victim
the crime of theft constitutes complex crime of incriminating an innocent
person through theft.

Planting of live bullet by NAIA personnel to extort money from a

passenger of an airline constitutes separate crime of planting of evidence and
consummated or attempted robbery.

71. BP 22 – Settled is the rule that estafa will not lie when the parties waive
the negotiable character of a check, and instead treat the same as proof of an
obligation. For instance, when there is an agreement between the parties at the
time of the issuance and postdating of the checks that the obligee shall not
encash or present the same to the bank, the obligor cannot be prosecuted
for estafa because the element of deceit is lacking (People vs. Villanueva, G.R.
No. 163662, February 25, 2015). In BP Blg. 22, the fact that the check is not
intended to be encashed or deposited in a bank is not a defense. This check
produces the same effect as ordinary check. What the law punishes is the
issuance of a rubber check itself and not the purpose for which the check was
issued nor the terms and conditions relating to its issuance (Cueme vs. People,
G.R. No. 133325, June 30, 2000).

a. Knowledge of the payee - When the payee was informed that the
checks are not covered by adequate funds, bad faith or estafa shall not arise
(People vs. Villanueva, G.R. No. 163662, February 25, 2015). In BP Blg. 22, the
facts that the payee had knowledge that he had insufficient funds at the time
he issued the check is immaterial as deceit is not an essential element of the
offense under this law.  The gravamen of the offense under BP Blg. 22 is the
issuance of a bad check; hence, malice and intent in the issuance thereof are
inconsequential (Rigor vs. People, G.R. No. 144887, November 17, 2004).

b. No account with the bank - According to the accused, she did not
own the check that she issued to complainant as collateral. He merely
borrowed it from a friend. What BP Blg. 22 punished was the mere act of
issuing a worthless check. The law did not look either at the actual ownership
of the check. The law penalizes a person who indulges in the making and
issuing of unfunded check on an account belonging to another with the latter’s
consent. Also, that the check was not intended to be deposited was really of no
consequence to her incurring criminal liability under BP 22 (Resterio vs.
People, G.R. No. 177438, September 24, 2012).

c. Pre-existing obligation - In order to constitute estafa through

issuance of bouncing check, the postdating or issuing a check must be the
efficient cause of the defraudation. In sum, the offender must be able to obtain
property from the offended party by reason of the issuance of the check (People
vs. Reyes, GR No. 157943, September 4, 2013). Thus, In estafa, the fact that
check was issued in payment of pre-existing obligation is a valid defense
(People vs. Reyes, G.R. No. 154159, March 31, 2005). But in BP Blg. 22, it is
not a valid defense (Ngo vs. People, G.R. No. 155815, July 14, 2004). In BP Blg.
22, the check involved must be issued to apply on account or for value.
Deliberations in the Batasan Pambansa indicate that “account” refers to pre-
existing obligations; while “for value” means an obligation incurred
simultaneously with the issuance of the check.

e. Notice of dishonor – To be guilty of this crime the accused must have

used the check in order to defraud the complainant. However, prima
facie evidence of deceit exists by law upon proof that the drawer of the check
failed to deposit the amount necessary to cover his check within three days
from receipt of the notice of dishonor (People vs. Reyes, supra). But receipt of
notice of dishonor is not an element of estafa through issuance of bouncing
check.

The giving of the written notice of dishonor does not only supply the
proof for the second element of violation of BP Blg. 22 arising from the
presumption of knowledge the law puts up but also affords the offender due
process. The law thereby allows the offender to avoid prosecution if she pays
the holder of the check the amount due thereon, or makes arrangements for
the payment in full of the check by the drawee within five banking days from
receipt of the written notice that the check had not been paid. The Court
cannot permit a deprivation of the offender of this statutory right by not giving
the proper notice of dishonor (Resterio vs. People, G.R. No. 177438, September
24, 2012).

Demand letter was given with the security guard without proof that it
reached accused and through registered mail which was returned with the
notation "N/S Party Out 12/12/05". Since there is proof that accused received
the notice of dishonor, he was acquitted. However he is still civilly liable (San
Mateo vs. People, G.R. No. 200090, March 6, 2013).

The mere presentment of the two registry return receipts was not
sufficient to establish the fact that written notices of dishonor had been sent to
or served on the petitioner as the issuer of the check. Considering that the
sending of the written notices of dishonor had been done by registered mail,
the registry return receipts by themselves were not proof of the service on the
accused without being accompanied by the authenticating affidavit of the
person who had actually mailed the written notices of dishonor, or without the
testimony in court of the mailer on the fact of mailing (Resterio vs. People, G.R.
No. 177438, September 24, 2012).

For notice by mail, it must appear that the same was served on the
addressee or a duly authorized agent of the addressee.  In fact, the registry
return receipt itself provides that “[a] registered article must not be delivered to
anyone but the addressee, or upon the addressee’s written order, in which case
the authorized agent must write the addressee’s name on the proper space and
then affix legibly his own signature below it.” In the case at bar, no effort was
made to show that the demand letter was received by petitioners or their
agent.  All that we have on record is an illegible signature on the registry
receipt as evidence that someone received the letter. As to whether this
signature is that of one of the petitioners or of their authorized agent remains a
mystery (Resterio vs. People, G.R. No. 177438, September 24, 2012).

The wife of complainant verbally informed the accused that the check

had bounced did not satisfy the requirement of showing that written notices of
dishonor had been made to and received by the petitioner. The verbal notices of
dishonor were not effective because it is already settled that a notice of
dishonor must be in writing (Resterio vs. People, G.R. No. 177438. September
24, 2012.

Under the Negotiable Instruments Law, notice of dishonor is not required

where the drawer has no right to expect that the bank will honor the check.
Since bank account of accused was already closed even before the issuance of
the subject check, he had no right to expect the drawee bank to honor his
check. Hence, he is not entitled to be given a notice of dishonor (Lopez vs.
People, G.R. No. 166810, June 26, 2008,). The crime involved in Lopez vs.
People is estafa through issuance of bouncing check. However, it is submitted
the Lopez principle can be applied to violation of BP 22.

In addition to proof of receipt of the notice of dishonor, the prosecution

must also establish beyond reasonable doubt the date when the accused
received the notice of dishonor. Without proof of the date of receipt, there is no
way to ascertain when the five-day period under Section 22 of BP 22 would
start and end. The MeTC cannot simply presume that the date of the demand
letter (November 30, 1993) was likewise the date of when the accused received
it. There is simply no such presumption provided in our rules on evidence
(Chua vs. People, G.R. No. 196853 July 13, 2015).

The stipulation on the existence of the demand letter and of accused’s

signature thereon is not admission that he received the demand letter. In fact,
the accused is denying the receipt of the demand letter and claimed that he
was required to sign blank papers where the contents of the demand letter
dated November 30, 1993 were later intercalated (Chua vs. People, G.R. No.
196853 July 13, 2015).

A demand letter that precedes the issuance of checks cannot constitute

as sufficient notice of dishonor within the contemplation of BP 22 (Chua vs.
People, G.R. No. 196853 July 13, 2015).

Acquittal of the accused for violation of BP Blg. 22 for failure to

establish receipt of notice of dishonor does not entail the extinguishment of
his civil liability for the dishonored checks (Chua vs. People, G.R. No. 196853
July 13, 2015).

f. Payment - Payment of check before the filing of information is a

defense. The spirit of B.P. Big 22, which is to protect the stability of the
banking system, would not be served by penalizing people who have corrected
their mistakes and restituted damages even before charges have been filed
against them. In sum, by making payment of the check before the filing of the
information, the purpose of the law has already been attained. Payment of
check after the filing of information is not a defense. Since there is no showing
of intention to mitigate the bad effects of his issuance of the unfunded check,
then there is no equitable reason to preclude the prosecution of accused. In
such a case, the letter of the law should be applied to its full extent (Lim vs.
People, G.R. No. 190834, November 26, 2014).

The essence of estafa through issuance of bouncing check is to punish

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

g. Suspension of payment - Suspension of payment order issued by

SEC before the check was presented for payment is a defense in BP Blg. 22.
Considering that there was a lawful Order from the SEC, the contract is
deemed suspended. Thus, the accused has no obligation to fund the check and
the complainant has no right to present it for payment (Gidwani vs. People, GR
No. 195064, January 15, 2014). Suspension of payment order issued by SEC
after three months from receipt of notice of dishonor is not a defense in BP Blg.
22. The accused has the obligation to make good of the check after he received
the letter prior to the issuance of suspension order (Rosario vs. Co, G.R. No.
133608, August 26, 2008).
 
h. Estafa and BP Blg 22 - Other differences between violation of BP Blg.
22 and estafa include the following: (1) deceit and damage are essential
elements of estafa but are not required in BP Blg. 22; (2) a drawer of a
dishonored check may be convicted under BP Blg. 22 even if he had issued the
same for a pre-existing obligation, while such circumstance negates criminal
liability for estafa; (3) specific and different penalties are imposed in each of the
two offenses; (4) estafa is essentially a crime against property, while violation of
BP Blg. 22 is principally a crime against public interest as it does injury to the
entire banking system; and (5) crimes of estafa are mala in se, while those of
BP Blg. 22 are mala prohibita. (Rimando vs. Aldaba, G.R. No. 203583, October
13, 2014, Perlas-Bernabe)

Owing to such differences, the simultaneous filing of BP 22

and estafa cases do not amount to double jeopardy. While the filing of the two
sets of Information for violation of BP Blg. 22 and for estafa, may refer to
identical acts committed by the accused, the prosecution thereof cannot be
limited to one offense, because a single criminal act may give rise to a
multiplicity of offenses and where there is variance or differences between the
elements of an offense is one law and another law as in the case at bar there
will be no double jeopardy because what the rule on double jeopardy prohibits
refers to identity of elements in the two (2) offenses. Otherwise stated,
prosecution for the same act is not prohibited. What is forbidden is prosecution
for the same offense. Hence, the mere filing of the two (2) sets of information
does not itself give rise to double jeopardy. (Rimando vs. Aldaba, G.R. No.
203583, October 13, 2014, Perlas-Bernabe)

i. Venue of BP Blg. 22 - It is well-settled that violation of BP 22 cases is

categorized as transitory or continuing crimes, which means that the acts
material and essential thereto occur in one municipality or territory, while
some occur in another. Accordingly, the court wherein any of the crime’s
essential and material acts have been committed maintains jurisdiction to try
the case; it being understood that the first court taking cognizance of the same
excludes the other. Stated differently, a person charged with a continuing or
transitory crime may be validly tried in any municipality or territory where the
offense was in part committed. Applying these principles, a criminal case for
violation of BP 22 may be filed in any of the places where any of its elements
occurred – in particular, the place where the check is drawn, issued, delivered,
or dishonored. (People vs. Yalong, G.R. No. 187174, August 28, 2013, Perlas-
Bernabe)

In People vs. Yalong, G.R. No. 187174, August 28, 2013, Perlas-Bernabe,
while the check was drawn, issued, and delivered in Manila, records reveal that
Ylagan presented the same for deposit and encashment at the LBC Bank in
Batangas City where she learned of its dishonor. As such, the MTCC, Batangas
City, correctly took cognizance of case as it had the territorial jurisdiction to try
and resolve the same.
 72. Child abuse – Section 10 (a) of RA No. 7610 punishes four distinct
acts, to wit: (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being
responsible for conditions prejudicial to the child's development. Accused can
be convicted under Section 10 (a) if he commits any of the four acts therein.
The prosecution need not prove that the acts of child abuse, child cruelty and
child exploitation have resulted in the prejudice of the child because an act
prejudicial to the development of the child is different from the former acts.
(Patulot vs. People, G.R. No. 235071, January 7, 2019)

a. Physical injury – Child abuse (Section 10 of RA No. 7610) includes

maltreatment, whether habitual or not, of the child. Maltreatment includes
psychological and physical abuse (Section 3) or infliction of physical injury
such as lacerations, fractured bones, burns, internal injuries, severe injury or
serious bodily harm suffered by a child (Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases) such as banging the heads
of the minor students by their teacher (De Ocampo v. The Hon. Secretary of
Justice, G.R. No. 147932, January 25, 2006)

Child abuse includes disciplinary acts by the father such as belting,

pinching, and strangulating his 8-year-old child, which caused her to limb
(Lucido vs. People, G.R. No. 217764, August 7, 2017) or by teacher such as
slamming him on the floor which caused him to lost consciousness (Rosaldes v.
People, G.R. No. 173988, October 8, 2014). Intent to discipline student is not a
defense since Article 233 of the Family Code prohibits the infliction of corporal
punishment by teacher. (Rosaldes v. People, supra)

b. Degrading the dignity of the child – Child abuse includes

commission of acts or uttering words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being (Section 3) such as
uttering statements “putang in mong bata ka namumuro ka na sa akin at
susunugin ko yong pamilya mo” (Jumaquio vs. Villarosa, G.R. No. 165924,
January 19, 2009)

In Bongalon v. 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 degrade the dignity of the victim. Without such intent, the
crime committed is not child abuse under R.A. No. 7610 but merely slight
physical injuries.

The Bongalon principle is only applicable if the accused assaulted a child

in the heat of anger or as spontaneous reaction to his misbehavior. In Jabalde
v. People, G.R. No. 195224, June 15, 2016, the accused was informed that her
daughter's head was punctured, and whom she thought was already dead. The
accused slapped, struck, and choked a minor as a result of the former's
emotional rage. Absence of any intention to debase, degrade or demean the
dignity of the child victim, the accused's act was merely slight physical injuries.

In Escolano vs. People, G.R. No. 226991, December 10, 2018,

complainants, who are minors, threw ketchup sachets against the daughter of
the accused. But it was the accused, who was hit by the sachets twice.
Accused exclaimed, "Putang ina ninyo, gago kayo, wala kayong pinag-aralan,
wala kayong utak, subukan ninyong bumaba dito, pakakawalan ko ang aso ko,
pakakagat ko kayo sa aso ko."

Uttering “putang ina” to the minors in the heat of anger is not child
abuse. The expression "putang ina mo" is a common enough utterance in the
dialect that is often employed, not really to slander but rather to express anger
or displeasure. In fact, more often, it is just an expletive that punctuates one’s
expression of profanity.
 Threatening to release her dog to chase and bite the minors made in the
heat of anger is not child abuse. Accused merely intended that they stop their
rude behavior. Absence of any intention to degrade the dignity of minors,
accused is only liable for other light threats.

c. Physical injury without degrading the dignity of the child - Child

abuse involving infliction of physical injury is a crime independent from child
abuse involving degrading the dignity of the child. In child abuse involving
infliction of physical injury, intent to debase, degrade or demean the child is
not an element thereof.

The statement "putang ina mo" and making hacking gestures with a
bolo, which are directed against the mother of two children, are not
constitutive of child abuse involving degrading the dignity of a child. Since the
threatening acts are not directed against the children, intent to degrade,
debase or demean their dignity is not established. (Escolano vs. People, G.R.
No. 226991, December 10, 2018). Throwing boiling cooking oil, which directed
against the mother of a baby and 3-year-old child, which consequently burned
the faces and skin of the minors, is not constitutive of child abuse involving
degrading the dignity of a child. Since throwing boiling oil is not directed
against the children, intent to degrade, debase or demean their dignity is not
established. However, the accused is still liable of child abuse involving
infliction of physical injury. (Patulot vs. People, G.R. No. 235071, January 7,
2019)

73. Sexual abuse – Having sexual intercourse or lascivious conduct with a

child constitutes child prostitution if committed for money, profit, or any other
consideration (People vs. Jalosjos, G.R. Nos. 132875-76, November 16, 2001);
or sexual abuse is committed under coercion or influence of any adult,
syndicate or group. In child prostitution, the victim is called child exploited in
prostitution while in sexual abuse the victim is called child subjected to other
abuse (Section 5 of RA No 7610). Coercion is either physical or psychological.
Taking advantage of ascendency as a swimming instructor over student is
psychological coercion (People vs. Larin, G.R. No. 128777, October, 7 1998).
The assurance of love, guarantee that she would not get pregnant by using the
"withdrawal method" and the promise of marriage were classified as
"psychological coercion" and "influence" within the purview of Section 5 of RA
7610. Hence, accused is guilty of sexual abuse (Caballo vs. People, GR No.
198732, June 10, 2013).

If the child is 12 years old and above, and the acts of the accused
constitute sexual abuse or child prostitution under RA No. 7610 and rape
through sexual assault or acts of lasciviousness, he shall be prosecuted under
RA No. 7610 since this law prescribed a grave penalty (Dimakuta vs. People,
G.R. No. 206513, October 20, 2015). However, if the acts constitute sexual
abuse and rape through sexual intercourse, he shall be prosecuted under RPC
since this law prescribed a graver penalty. He cannot be prosecuted for
compound crime of rape and sexual abuse because the latter is punishable
under special law. He cannot be prosecuted for both rape and sexual abuse
because of the rule on double jeopardy (People v. Matias, G.R. No. 186469,
June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June
19, 2013).

If the child is under 12 years old, and the acts of the accused constitute
sexual abuse and rape or acts of lasciviousness, the latter shall be prosecuted
penalized as follows: (1) rape through sexual intercourse; (2) acts of
lasciviousness with the penalty of reclusion temporal in its medium period
(Section 5 of RA No. 7610).

Prior to RA No. 8353 (Rape Law), inserting finger into genital orifice is
acts of lasciviousness. Hence, reclusion temporal in its medium period under
RA No. 7610 should be imposed. Under RA No. 8353, inserting finger into
genital orifice is rape through sexual assault where the penalty is prision
mayor. To impose the lighter penalty under RPC as amended by RA 8353 is
unfair to the victim. It is not the intention of RA No. 8353 to disallow the
imposition of penalty under RA No. 7610 if the victim is child subjected to
sexual abuse, who isunder 12 years of age (People vs. Chingh, G.R. No.
178323, March 16, 2011).

If the crime is qualified rape through sexual assault, the Chingh case is
not applicable since RA No. 8353 prescribed a grave penalty of reclusion
temporal for it (People vs. Bonaagua, G.R. No. 188897, June 6, 2011).

74. Terrorism - Terrorism is committing a predicate crime which creates a

condition of widespread and extraordinary fear and panic among populace in
order to coerce the government to give in to an unlawful e.g. demand by Al
Queda against the US not to interfere with the affairs of the Muslim (Section of
RA No. 9372). The predicate crimes of terrorism are: Piracy, highway robbery,
hijacking, rebellion, coup e’tat, murder, kidnapping and serious illegal
detention, crimes involving destruction, arson, unlicensed firearm and
explosives, violation of Toxic Substances and Hazardous and Nuclear Waste
Control Act and violation of Atomic Energy Regulatory and Liability Act.

In Lagman vs. Medeldea, G.R. No. 231658, July 04, 2017, the Supreme
Court stated that there is nothing in Article 134 of the Revised Penal Code and
RA No. 9372 which states that rebellion and terrorism are mutually exclusive
of each other or that they cannot co-exist together. RA No. 9372 does not
expressly or impliedly repeal Article 134 of the Code. And while rebellion is one
of the predicate crimes of terrorism, one cannot absorb the other as they have
different elements.

With due respect to the Supreme Court, rebellion is a predicate crime of

terrorism, hence, the latter absorbs the former. In fact Section 49 of RA No.
9372 has adopted the rule on double jeopardy. Under this provision, when a
person has been prosecuted under a provision of this Act, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the
charge, the acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for any offense or felony which is necessarily included
in the offense charged under this Act.

This legislative rule against double jeopardy is not compatible with the
Lagman case on non-mutually exclusive rule. Under the double jeopardy rule,
conviction for terrorism is a bar to prosecution for rebellion. Under the non-
mutually exclusive rule, conviction for terrorism is not a bar to prosecution for
rebellion since both crimes can co-exist because they are not mutually
exclusive of each other. In sum conviction for terrorism will not exclude
conviction for rebellion and vice versa.

It is humbly submitted that the non-mutually exclusive rule in Lagman

case is an obiter dictum since this principle will not resolve the issue in the
case, and that is, the constitutional basis for declaring Martial Law in
Mindanao by President Duterte. Whether rebellion is a predicate crime of
terrorism where double convictions are prohibited under the rule on double
jeopardy; or a separate and independent crime where double convictions are
allowed under the non-mutually exclusive rule, the same can be used as a
basis of declaring martial law.

75. Trafficking in person - Accompanying a child and offering her sexual

services in exchange for money constitutes child prostitution. The accused who
offered the victim to the one who raped her is not liable for rape as principal
indispensable cooperation since bringing the victim to the rapist is not
indispensable to the commission of the crime of rape (People vs. Dulay, GR No.
193854, September 24, 2012). If the accused is regularly offering the sexual
service of the child in exchange for money, the crime committed is not anymore
child prostitution. Maintaining or hiring the child as purpose of prostitution
constitutes qualified trafficking in person because the former took advantage of
vulnerability of the latter as a child and as one who need money. Minority is
qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03,
2014; People vs. Hirang, G.R. No. 223528, January 11, 2017). 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 show 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).

In Young vs. People, G.R. No. 213910, February 03, 2016, Perlas-
Bernabe, petitioners allegedly recruited and hired the AAA Group and,
consequently, maintained them under their employ in Jaguar for the purpose
of engaging in prostitution. Accused can be properly charged with trafficking in
person.

76. Illegal recruitment - An employee may be held liable with his employer, if
the former actively and consciously participated in illegal recruitment. The
employee cannot escape liability by claiming that she was not aware that before
working for her employer in the recruitment agency, she should first be
registered with the POEA. Illegal recruitment in large scale is malum
prohibitum, not malum in se. Good faith is not a defense (People vs.
Valenciano, G.R. No. 180926, December 10, 2008).

77. RA No. 9165 - Accused were caught by police authorities on board a

speedboat carrying shabu. Since it was not proven that the drugs came from
China or foreign country they were convicted of possession of dangerous drugs,
which is necessarily included in the charge of importation (People vs. Chan Liu,
G.R. No. 189272, January 21, 2015).

Possession of different kinds of dangerous drugs in a single occasion

constitutes a single offense of possession of dangerous drugs (David vs. People,
G.R. No. 181861, October 17, 2011).

For illegal possession of dangerous drugs, the prosecution must

establish that the accused freely and consciously possessed the dangerous
drug without authority. However, mere possession of dangerous drug
constitutes prima facie evidence of knowledge or animus possidendi sufficient
to convict an accused in the absence of any satisfactory explanation (Asiatico
vs. People, G.R. No. 195005, September 12, 2011).

a. Use of dangerous drugs - Where residue of dangerous drugs is found

and there is a positive confirmatory test result, the accused should be charged
with use rather than possession of dangerous drugs. This would be in keeping
with the intent of the law to rehabilitate first time offenders of drug use and
provide them with an opportunity to recover for a second chance at life (People
vs. Matinez, G.R. No. 191366, December 13, 2010).

Positive confirmatory test is an element of use of dangerous drugs.

However, the absence of such test cannot be raised as an issue for the first
time on appeal (Ambre vs. People, G.R. No. 191532. August 15, 2012).

b. Attempted sale - Poseur-buyer showed shabu for sale to poseur

buyer.  The sale was aborted when the police officers immediately placed
accused under arrest. The crime committed is attempted sale (People vs.
Figueroa, G.R. No.  186141, April 11, 2012).
 c. Coordination with PDEA - Section 86 of RA No. 9165, which
declares PDEA shall be the "lead agency" in the investigations and
prosecutions of drug-related cases, is more of an administrative provision. It is
silent as to the consequences of failure on the part of the law enforcers to seek
the authority of the PDEA prior to conducting a buy-bust operation (People vs.
Berdadero, G.R. No. 179710 June 29, 2010, ). Lack of coordination with the
PDEA will not invalidate a buy-bust operation.  Such coordination is not an
indispensable requirement in buy-bust operations (People vs. Mendosa, G.R.
No. 189327, February 29, 2012).

d. Seizure and custody – The absence of a physical inventory and the

lack of a photograph of the seized items are not sufficient justifications to
acquit the appellant as the Court in several cases has affirmed convictions
despite the failure of the arresting officers to strictly comply with the Chain of
Custody Rule as long as the integrity and identity of the corpus delicti of the
crime are preserved (People vs. Villahermoso, G.R. No. 218208, January 24,
2018).

The original version of Section 21 of RA No. 9165 did not provide the
place where the inventory and photography of the confiscated item shall be
conducted. However, Section 21 of RA No. 9165 as amended by RA No. 10640
now includes a specification of locations where the physical inventory and
taking of photographs must be conducted. The amended section uses the
mandatory verb "shall" and now includes the following proviso: Provided, That
the physical inventory and photograph shall be conducted at the place where
the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures (People vs. Que, G.R. No. 212994, January 31, 2018).

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

physical inventory of the seized dangerous drugs and photograph the same in
the presence of “at least four persons”, to wit: (1) the accused or the person
from whom such items were confiscated or his representative or counsel; (2)
media representatives (3) DOJ representative and (4) any elected public official.
However, RA No. 10640 amended Section 21 of RA No. 9165 and relaxed this
provision with respect to the persons required to be present during the physical
inventory and photographing of the seized items. Under Section 21 of RA No.
9165 as amended by RA No. 10640, the inventory and photography of the
seized items must be made in the presence of “at least three persons”, to wit: (1)
the accused or the person from whom such items were confiscated or his
representative or counsel; (2) the media or representatives of National
Prosecution Service and (3) any elected public official. RA No. 9165 as amended
uses the disjunctive “or” in the phrase “the National Prosecution elected public
official Service or the media.” Thus, a representative from the media and a
representative from the National Prosecution Service are now alternatives to
each other (People vs. Que, G.R. No. 212994, January 31, 2018).

The original version of Section 21 of RA No. 9165 did not provide the
effect of non-compliance of the rule on inventory and photography of the
confiscated item. Section 21 of RA No. 9165 as amended by Republic Act No.
10640, now includes a proviso that sanctions noncompliance under "justifiable
grounds": Provided, finally, That noncompliance of 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 and custody over said items (People vs.
Que, G.R. No. 212994, January 31, 2018). The justifiable ground for non-
compliance must be proven as a fact, because the Court cannot presume what
these grounds are or that they even exist. Moreover, for the above-saving
clause to apply, the prosecution must explain the reasons behind the
procedural lapses, and that the integrity and evidentiary value of the seized
evidence had nonetheless been preserved (People vs. Paz, G.R. No. 229512,
January 31, 2018).
 The following are justifiable grounds for failure to comply with the three-
witnesses rule: 1. The attendance of elective official and media or NPS
representative was impossible because the place of arrest was a remote area; 2.
The safety of these required witnesses during the inventory and photograph of
the seized drugs was threatened by an immediate retaliatory action of the
accused or any person acting for and in his behalf; 3. The elected official
themselves were involved in the punishable acts sought to be apprehended; 4.
The time constraints and urgency of the anti-drug operations, which often rely
on tips of confidential assets, prevented the law enforcers from obtaining the
presence of the required witnesses even before the offenders could escape; or 5.
Earnest efforts to secure the presence of these required witnesses within the
period required under Article 125 of the Revised Penal Code prove futile
through no fault of the arresting officers, who face the threat of being charged
with arbitrary detention. (People vs. Lim, G.R. No. 231989, September 4, 2018)

The police were able to explain the failure to conduct an inventory and
take photographs of the seized items. This is because of the intervening fact
that one Illuminado Acosta was shot at the time of the buy-bust operation
(People vs. Flor, G.R. No. 216017, January 19, 2018).

In People vs. Lim, supra, an agent testified that no members of the media
and barangay officials arrived at the crime scene because it was late at night
and it was raining, making it unsafe for them to wait at the house of the
accused. Another agent similarly declared that the inventory was made in the
PDEA office considering that it was late in the evening and there were no
available media representative and barangay officials despite their effort to
contact them. He admitted that there are times when they do not inform the
barangay officials prior to their operation as they might leak the confidential
information. We are of the view that these justifications are unacceptable as
there was no genuine and sufficient attempt to comply with the law. The
prosecution likewise failed to explain why they did not secure the presence of a
representative from the DOJ. Accused was acquitted.

A policeman failed to comply with Section 21 of R.A. No. 9165 since the
inventory and photograph of the drugs was only made in the presence of
barangay tanod and the same was not submitted to the PNP Crime Laboratory
within 24 hours (because he was sick). On appeal, the defense raised the issue
of inadmissibility of evidence for failure to comply with the rule on chain of
custody. The policeman failed to comply with the rule on three-witnesses
(accused, public officer, and media or NPS representative) and did not offer
justifiable grounds for such non-compliance. However, the issue of non–
compliance with Section 21 of R.A. No. 9165 cannot be raised for the first time
on appeal. Hence, the defense of the accused should be rejected (People v.
Badilla, G.R. No. 218578, August 31, 2016)

e. Chain of custody - The chain of custody refers to recorded authorized

movements and custody of confiscated dangerous drugs. It involves testimony
on every link in the chain - from the confiscation of the illegal drugs to its
receipt in the forensic laboratory up to its presentation in court. It is necessary
that every person who touched the seized item describe how and from whom he
or she received it; where and what happened to it while in the witness’
possession; its condition when received and at the time it was delivered to the
next link in the chain. Generally, there are four links in said chain of custody:
1) the seizure and marking, if practicable, of the illegal drug confiscated from
the accused by the apprehending officer; 2) the turnover of the seized drug by
the apprehending officer to the investigating officer; 3) the turnover by the
investigating officer of said item to the forensic chemist for examination; and,
4) the turnover and submission thereof from forensic chemist to the court
(People vs. Gajo, G.R. No. 217026, January 22, 2018).
 f. Plea bargaining - Section 23 of RA No. 9165, any person charged
under any crime involving dangerous drugs regardless of the imposable penalty
shall not be allowed to avail of the provision on plea-bargaining. However, this
provision was declared as unconstitutional for contrary to the rule making
authority of the Supreme Court (Estipona, Jr. vs. Lobrigo, G.R. No. 226679,
August 15, 2017).

78. RA No. 3019 – Corruption is an independent crime. Section 3 of R.A. No.

3019 reads: “In addition to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt practices of any public
officer.” It is clear then that one may be charged with violation of R.A. No. 3019
in addition to a felony under the Revised Penal Code for the same act.
(Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727–28, August 18, 2006) Thus,
the offender in addition to violation of Section 3 of R.A. No. 3019 can be held
liable for falsification of document by public official (Suero v. People, G.R. No.
156408, January 31, 2005); or malversation through falsification of document
(People vs. Pajaro, G.R. Nos. 167860–65, June 17, 2008) or failure to render an
accounting. (Lumauig v. People, G.R. No. 166680, July 7, 2014); or plunder (See:
Senator Revilla vs. Office of the Ombudsman, G.R. Nos. 212427-28, December 6,
2016, Perlas-Bernabe)

Under Section 3 of RA No. 3019, any incumbent public officer, against

whom any criminal prosecution under a valid information for crime of
corruption under RA 3019, crimes committed by public officer under the RPC
or for any offense involving fraud upon government or public funds or property
is pending in court, shall be suspended from office. The allegation of
falsification of the three public documents by making it appear that the flood
control project was 100% complete when in fact it was not constitutes fraud
upon public funds, which is a ground to preventively suspend a public officer
(Abdul vs. Sandiganbayan, G.R. No. 184496 December 2, 2013).

It cannot be denied that the transfer of the vehicles to SFWD was made
to ensure the success of the implementation of the waterworks projects in the
province. The Deed of Donation expressly provided that the subject vehicles
shall be used for the said purpose. There is no showing that the accused acted
in bad faith in donating the vehicles. Accused was acquitted of violation of RA
No. 3019 (Bustillo vs. People, G.R. No. 160718 May 12, 2010, ).

The amount and number of loans (P16 million) obtained from the
government bank by the private company despite being undercapitalized (P7
million capital stock) and absence of any action by the bank to collect full
payment are showing that the contract, which is manifestly disadvantageous
on the part of the government, violates Section 3 (g) of RA No. 3019. The
private individual, who obtained that loan, and the responsible bank officers
are liable for the crime of corruption. Private persons may likewise be charged
with violation of Section 3(g) of RA 3019 if they conspired with the public
officer in consonance with the avowed policy of this law, which is to repress
certain acts of public officers and private persons (Singian, Jr. vs.
Sandiganbayan, G.R. Nos. 195011-19 September 30, 2013).

Accused, as a school principal, acted with evident bad faith in refusing to

implement the appointments of private complainants as ordered by the CHED.
Her refusal to implement the subject promotion was based on a personal
dislike or ill feelings towards the complainants and not anchored on any law or
civil service rule. Despite of the several directives of the CHED to implement
the promotion, the accused refused to do so. The complainants suffered undue
injury they failed to enjoy the benefits of an increased salary corresponding to
their newly appointed positions. Accused was convicted of violation of Section 3
(e) of RA No. 3019 (Catacutan vs. People, G.R. No. 175991 August 31, 2011).

a. Arias principle - In Arias v. Sandiganbayan, G.R. Nos. 81563 and

82512, December 19, 1989, the property bought by the City is overpriced.
When the accused was appointed as treasurer, the sale of the property had
already been consummated. Accused was charged with violation of Section 3(e)
of R.A. No. 3019 for causing damage to the government through manifest
partiality and evident bad faith. The only evidence presented by the
prosecution is his signature on the voucher. He was acquitted. Heads of offices
can rely to a reasonable extent on their subordinates on preparation of bids,
purchase of supplies, or negotiations. Any executive head agencies or
commissions can attest to the volume of papers that must be signed. Thus,
executive head cannot be convicted on the sole basis of signature or approval
appearing on a voucher. To sustain a conspiracy charge and conviction,
evidence must be presented other than her signature on the voucher.

The principle in the Arias case is not applicable in the following cases:

a. If other than the accused’s signature on the voucher, circumstances

show evident bad faith, or manifest partiality such as: (a) 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 v. People, G.R. No. 164921, July 8, 2005); or
(b) where accused approved the voucher without indication of the retention
money required by law, and he even inspected the construction site of hospital
boat being constructed, in which he should have noticed the financial
weakness of the contractor and the defective works (Rivera v. People, G.R.
No. 156577, December 3, 2014);

b. If other than the accused’s signature on the voucher, circumstances

show gross inexcusable negligence such as where there is deviation from
ordinary procedure, which necessitate further investigation – 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
another person and not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan, G.R.
No. 134493, August 16, 2005);

In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, Perlas-
Bernabe, the accused in his capacity as Chairman of the Inspection and
Acceptance Committee, signed the 16 certificates of acceptance, inventory, and
delivery of articles despite its incompleteness or lack of material dates, while
co-accused certified to the correctness of the Inspection Report Forms even if
no such deliveries were made. Since there are reasons for the heads of offices
to further examine the documents in question, accused cannot seek refuge by
invoking the Arias doctrine.

c. 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 in approving
the cash advances in the amount of P18 million to paymaster despite of the
failure to liquidate previous cash advances (Jaca v. People, G.R. No. 166967,
January 28, 2013); and

d. If the documents involving the release of funds are not so voluminous

so as to preclude him from studying each one carefully. (Santillano v. People,
G.R. Nos. 175045–46, March 3, 2010)

b. Inducement by means of money - Under Section 3 (a) of RA No.

3019, a public officer, who persuades, induces or influences another public
officer to perform an act constituting a violation of rules and regulations or an
offense in connection with the official duties of the latter, shall be punished for
corruption. However, the deliberation in the Senate regarding the bill on anti-
graft shows that the mode of committing the crime under Section 3 (a) is
persuading, inducing or influencing a public officer by another public officer to
commit an offense or to violate rules and regulations by means of
consideration, reward, payment or remuneration (Baviera vs. Zoleta, G.R. No.
169098, Oct. 12, 2006).

c. Transaction or contract - Section 3 (b) of RA No. 3019 is limited only

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

d. Inordinate delay doctrine – Inordinate delay in resolving a criminal

complaint is violative of the constitutionally guaranteed right to due process
and to the speedy disposition of cases, which warrants the dismissal of the
criminal case. Delay prejudices the accused or respondent and the State just
the same. Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to prevent
oppressive pre-trial incarceration; to minimize anxiety and concerns of the
accused to trial; and to limit the possibility that his defense will be impaired.
Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system. There
is also prejudice if the defense witnesses are unable to recall accurately the
events of the distant past.

In Coscolluela, the fact that it took the Ombudsman eight years to

resolve a case under preliminary investigation was considered violative of the
right to speedy disposition of cases. In Cervantes, it took the OSP six years
from the filing of the initiatory complaint before deciding to file an information;
this was struck down as well. In Tatad v. Sandiganbayan, a three-year delay
in the termination of the preliminary investigation by the Tanodbayan was
considered violative of the right. In Lopez, Jr. v. Office of the Ombudsman, the
preliminary investigation was resolved close to four years from the time all the
counter- and reply-affidavits were submitted to the Ombudsman, and this was
similarly struck down. In People v. Sandiganbayan, the fact-finding
investigation and preliminary investigation by the Ombudsman lasted nearly
five years and five months, which the Court considered an inordinate delay.
The same is true in Angchangco, Jr., and Roque v. Office of the
Ombudsman, where the delay involved a period of six years, more or less.
In Licaros, the failure of the Sandiganbayan to decide the case even after the
lapse of more than 10 years after it was submitted for decision was declared to
involve "more than just a mere procrastination in the proceedings. In this
case, the preliminary investigation proceedings in said case took more than 11
long years to resolve. Thus, the case against petitioner should be dismissed
(Almeda vs. Office of the Ombudsman, G.R. No. 204267, July 25, 2016).

e. Behest loan – The following are the essential elements for violation of
Section 3 (e) of RA 3019: (1) The accused must be a public officer discharging
administrative, judicial or official functions; (2) He must have acted with
manifest partiality, evident bad faith or inexcusable negligence; and (3) That
his action caused any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions. (Office of the Ombudsman vs. Prudente, G.R. No.
201830, November 10, 2015; Perlas-Bernabe; PCGG vs. Gutierrez, G.R. No.
194159, October 21, 2015, Perlas-Bernabe)

The elements of violation of Section 3 (g) are: (a) that the accused is a
public officer; (b) that he entered into a contract or transaction on behalf of the
government; and (c) that such contract or transaction is grossly and manifestly
disadvantageous to the government. (PCGG vs. Gutierrez, G.R. No. 194159,
October 21, 2015, Perlas-Bernabe)

Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not require the
giving of unwarranted benefits, advantages or preferences to private parties
who conspire with public officers, its core element being the engagement in a
transaction or contract that is grossly and manifestly disadvantageous to the
government. (PCGG vs. Office of the Ombudsman, G.R. No. 193176, February
24, 2016, Perlas-Bernabe)

Granting of behest loan by government bank or entity to private

individual may violate Section 3 (g) of RA No. 3019 (PCGG vs. Office of the
Ombudsman, G.R. No. 193176, February 24, 2016, Perlas-Bernabe). The
following criteria may be utilized as a frame of reference in determining a
behest loan: (1) it is under-collateralized; (2) the borrower corporation is
undercapitalized; (3) direct or indirect endorsement by high government
officials like presence of marginal notes; (4) stockholders, officers or agents of
the borrower corporation are identified as cronies (of high government officials);
(5) deviation of use of loan proceeds from the purpose intended; (6) Use of
corporate layering; (7) non-feasibility of the project for which financing is being
sought; and (8) extraordinary speed in which the loan release was made. (See:
PCGG vs. Desierto, G.R. No. 139296, November 23, 2007)

The fact that PNB appeared to be unduly exposing its finances by

extending iniquitous loans to HMOI, despite the latter being undercapitalized
and, notwithstanding the inadequacy of the collaterals being offered to secure
the loans is basis to find probable cause that violation of RA No. 3019. The
HMOI loans appear to bear the badges of a behest loan. (PCGG vs. Office of the
Ombudsman, G.R. No. 193176, February 24, 2016, Perlas-Bernabe)

DBP guaranteed the foreign borrowings of Galleon for the purpose of

acquiring new and secondhand vessels despite various red flags such as: (a) its
guarantee accommodation request covers 100% of its project cost, which is in
excess of DBP's normal practice of financing only 80% of such cost; (b) its net
profit margin was experiencing a steady decrease due to high operating costs;
(c) its paid-up capital is only P9.95 Million; and (d) aside from its proposal to
source the increase in equity from the expected profits from the operations of
the vessels to be acquired, Galleon has not shown any concrete proof on how it
will be funding its equity build-up. The Ad Hoc Committee concluded that the
accommodations extended by DBP to Galleon were in the nature of behest
loans. Thus, there is probable cause to charge respondent of violation of
Section 3 (e) and (g). (PCGG vs. Office of the Ombudsman, G.R. No. 193176,
February 24, 2016, Perlas-Bernabe)

f. Receiving gift - As a general rule, a police officer, who receives gift

from a person as a token of generosity, may be held criminally liable Section 7
(d) of RA No. 6713, which punishes public officials and employees shall not
solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment,
loan or anything of monetary value from any person in the course of their
official duties or in connection with any operation being regulated by, or any
transaction which may be affected by the functions of their office.

Under Section 3 (d) of RA No.6713, "receiving any gift" includes the act of
accepting directly or indirectly, a gift from a person other than a member of his
family or relative as defined in this Act, even on the occasion of a family
celebration or national festivity like Christmas, if the value of the gift is neither
nominal nor insignificant, or the gift is given in anticipation of, or in exchange for,
a favor.

If the value of the gift is nominal or insignificant, or the gift is not given
in anticipation of, or in exchange for, a favor, the police officer, who received
such gift, is not liable under RA No. 6713. In Mabini vs. Raga, A.M. No. P-06-
2150, June 21, 2006, complainant presented a letter signed by Branch 28
employees, including respondent, thanking Governor Roño for his “donation”
of P1,500.00. However, there is no proof whatsoever that a solicitation took
place. The cash gift of P1,500.00 was received not by respondent Lilia alone,
but together with eleven other employees of Branch 28, to purchase lechon for
their Christmas party; hence, the individual benefit of the employees may be
considered nominal. Neither does it appear from the evidence that the nominal
gift was given in anticipation of, or in exchange for, a favor. Thus, respondent
Lilia cannot be held liable under Republic Act No. 6713 because the governor’s
gift, aside from being unsolicited, was also nominal or insignificant in value;
and not given in anticipation of, or in exchange for, a favor. The receipt of the
gift does not fall within the ambit of Section 7 (d) of RA No. 6713, in relation to
Sections 3 (c) and (d).

Moreover, Section 14 of RA No. 3019 recognizes as lawful receipt of

unsolicited gift of insignificant value of a gift given as a token of gratitude. This
provision provides: Unsolicited gifts or presents of small or insignificant value
offered or given as a mere ordinary token of gratitude or friendship according to
local customs or usage, shall be excepted from the provisions of this Act.

79. SALN - Failure to file SALN as required by law is a violation of Section 8 of

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

80. Plunder - The elements of plunder are:

First - That the offender is a public officer who acts by himself or in

connivance with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons; (Note: Senator Pogi can be
held liable for plunder even if the principal offender, who masterminded the
plunder of pork barrel, is a private individual, the Pork-barrel Queen. What is
important is that Senator Pogi in connivance with Pork-barrel Queen acquired
ill-gotten wealth). On the other hand, Pork-barrel Queen can be held liable for
plunder on the basis of conspiracy.

Second - That he amassed, accumulated or acquired ill-gotten wealth

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

1. Through misappropriation, conversion, misuse, or malversation of

public funds or raids on the public treasury; (Example: Misuse of funds in the
amount P10 million by awarding contract to a close relative, who is not the
lowest bidder; Misuse of funds or fraud disposition of government asset to
P100 million by diverting the construction of road leading to his farm instead of
the poblacion).

Can the Senator use the defense in malversation that he is not

responsible for the misuse of his PDAP since it is the duty of the appropriate
implementing agency of the government to check that the recipient of the fund
is not bogus? No. Assuming that the duty to check that the recipient of the
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.

2. By receiving, directly or indirectly, any commission, gift, share,

percentage, kickback or any other form of pecuniary benefits from any person
and/or entity in connection with any government contract or project or by
reason of the office or position of the public officer; (Example: Collecting or
receiving commission from the sales of Belle Shares in the amount of
P189,700,000.00 which was deposited in the Jose Velarde account and
receiving bi-monthly collections from “jueteng”, a form of illegal gamblingin the
aggregate amount of P545,291,000.00 of which was deposited in the Erap
Muslim Youth Foundation (People vs. Joseph Estrada, Criminal Case No.
26558, September 12, 2007).

3. By the illegal or fraudulent conveyance or disposition of assets

belonging to government (Example: Ordering the GSIS and the SSS by
President Estrada to purchase shares of stock of Belle Corporation (People vs.
Joseph Estrada, Criminal Case No. 26558, September 12, 2007);

4. By obtaining, receiving or accepting directly or indirectly any shares of

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

5. By establishing agricultural, industrial or commercial monopolies or

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

6. By taking advantage of official position, authority, relationship,

connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines;

Note: The word “combination” means at least two different predicate

crimes; while the term “series” means at least two predicate crimes of the same
kind (Ejercito vs. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006).
Thus, a single predicate crime amounting to 50 million pesos is not plunder.
The intention of the lawmakers is that if there is only one predicate crime, the
offender has to be prosecuted under the particular crime, which is already
covered by existing laws. What is punishable under the law is "acts of plunder",
which means that there should be at least, two or more, predicate crimes (See
deliberation of the Bicameral Committee on Justice, May 7, 1991).

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

The damages suffered by the government in diverting the road from the
poblacion to the farm of the accused shall not be considered in determining if
plunder is committed. What is important is the amount of ill-gotten wealth
acquired by the public officer and not the amount of damage suffered by the
government.

In People vs. Joseph Estrada, Criminal Case No. 26558, September 12,
2007 -One of the predicate crimes alleged in the information is
misappropriation of the excise tax share of Ilocos Sur. This was not proven
beyond reasonable doubt. However, the following predicate crimes were alleged
and proven by evidence (1) series of acts of receiving collections from "jueteng"
in the aggregate amount of P545,291,000.00; and (2) series consisting of two
acts of ordering the GSIS and the SSS to purchase shares of stock of Belle
Corporation and collecting or receiving commission from the sales of Belle
Shares in the amount of P189,700,000.00. This pattern of criminal acts
indicates an overall unlawful scheme or conspiracy to amass ill-gotten wealth
in the amount of more than P50 million. Estrada was convicted of plunder.

a. Single conspiracy – In single conspiracy, the public officer conspired

with a single individual or group in committing plunder. The principal plunder
in this case must be a public officer. But the participants in this case can be
public officers or private individuals (see: Juan Ponce Enrile vs. People, G.R.
No. 213455, August 11, 2015).

Hypothetical problem: A Senator conspired with nine (9) private

individuals in acquiring ille-gotten wealth through a series of misappropriation
of his pork barrel amounting to P200 million. Each of them is entitled to 10%
of P200 million (or P20 million). They are liable for plunder. On the basis of
conspiracy, total amount of ill-gotten wealth acquired by the conspirators
including the private individuals shall be considered for purpose of determining
if P50-million threshold had been reached. Since the total amount of ill-gotten
wealth acquired by the Senator, the principal plunderer, and his nine co-
conspirators, participants, is P200 million, they are liable for plunder (See:
Juan Ponce Enrile vs. People, supra).

b. Multiple conspiracies – There are two structures of multiple

conspiracies, namely: wheel or circle conspiracy and chain conpiracy. Under
the wheel or circle conspiracy, there is a single person or group (the "hub")
dealing individually with two or more other persons or groups (the "spokes").
Under the chain conspiracy, usually involving the distribution of narcotics or
other contraband, in which there is successive communication and cooperation
in much the same way as with legitimate business operations between
manufacturer and wholesaler, then wholesaler and retailer, and then retailer
and consumer (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 2007). An
illustration of wheel conspiracy wherein there is only one conspiracy involved
was the conspiracy alleged in the information for plunder filed against former
President Estrada and his co-conspirators. Former President Estrada was the
hub while the spokes were all the other accused individuals. The rim that
enclosed the spokes was the common goal in the overall conspiracy, i.e., the
amassing, accumulation and acquisition of ill-gotten wealth (GMA vs. People,
G.R. No. 220598, July 19, 2016).

Under the wheel or circle conspiracy, there is a single person or group

(the hub) dealing individually with two or more other persons or groups (the
spokes) (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 2007). In plunder,
the principal plunder is the hub, while the participants or persons with whom
the principal plunder connived in acquiring ill-gotten wealth are the spokes.
The hub must be a public officer while the spokes can be public officers or
private individuals.

Hypothetical problem: Pedro, the President of the Philippines, conspired

with A, B and D, private individuals, in connection with his shares on the
jueteng collections in the amount of P20 million; and with X, Y and Z, private
individuals, in connection with his P20 million commission pertaining to
transaction where GSIS and SSS bought the share of a private corporation on
his order. A, B and D and X, Y and Z received P10 million each out of these
transactions. Since there is wheel conspiracy in this case, the total amount of
P40 million acquired by Pedro, the hub, and the total amount P60 million
acquired by A, B and D and X, Y and Z, the spokes, shall be considered for
purpose of determining if P50-million threshold had been reached. Since the
total amount of ill-gotten wealth acquired by hub and spokes is P100 million,
they are liable for plunder (see: Gloria Macapagal Arroyo vs. People, supra).

c. Identification of the principal plunder – In wheel conspiracy

involving plunder, the public officer (principal plunder or the hub) amasses,
accumulates and acquires ill-gotten wealth in connivance with others (the
spokes). The rim that enclosed the spokes was the common goal in the overall
conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten
wealth (Gloria Macapagal Arroyo vs. People, supra).

1. Identified hub - If there is wheel conspiracy concerning the series of

acts of misappropriation of PCSO fund in the amount of P360 million, and
Pedro, a public officer, was identified as the principal plunder or the hub and
the nine (9) other accused were identified as the spokes, the entire amount of
P360 million shall be considered to determine if the P50-million threshold in
plunder has been reached. Hence, Pedro, the hub, and nine (9) spokes are
liable for plunder since the total amount of ill-gotten wealth that they acquired
is P360 million.
 2. Unidentified hub - If there is wheel conspiracy concerning the series of
acts of misappropriation of P360 million, but none of the 10 accused was
identified as the hub or principal plunder, each of them is only liable for 10% of
the P360 million. Since each of them is only liable for P36 million, plunder is
no committed since the P50-million threshold had not been reached (Gloria
Macapagal Arroyo vs. People, supra).

81. Qualifying circumstance of use of information technology - Use of

information and communications technologies in committing felony or offense
under special law is a qualifying circumstance under Section 6 of RA No.
10175.

Under Section 6 of RA No. 10175, the penalty for crimes punishable

under special laws committed through and with the use of information and
communication technologies shall be one degree higher than that provided the
law. However, this provision requires the application of the rules on graduation
of penalties under the Revised Penal Code. Hence, Section 6 finds application
only if special law involved has adopted the technical nomenclature of the
penalties of Revised Penal Code.

82. Content-related offenses - Content-related offenses includes cyber libel,

cybersex and cyber child pornography. A prosecution for cybercrime offenses
shall be without prejudice to any liability for violation of any provision of the
Revised Penal Code or special laws (Section 7). Despite of Section 7, the
offender cannot be prosecuted for cyber libel or cyber child pornography under
RA No. 10175 in addition to libel under RPC or child pornography under RA
No. 9775 since this will offend the constitutional rule on double jeopardy
(Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014).

a. Cyber libel – Libel is not a constitutionally protected speech and that

the government has an obligation to protect private individuals from
defamation. Indeed, cyber libel is actually not a new crime since Article 353, in
relation to Article 355 of the Revised Penal Code, already punishes it. Online
defamation constitutes “similar means” for committing libel (Disini vs.
Secretary of Justice, G.R. No. 20335, February 18. 2014).

Cyber libel is an unlawful or prohibited act of libel as defined in Article

355 of RPC committed through a computer system or any other similar means
which may be devised in the future. In case libel is committed through use of
information and communications technologies, the penalty for libel under
Article 355 of RPC shall be increased one degree higher pursuant to Section 6
of RA No. 10175.

Under Section 4 (c) (4) of RA No. 10175, cybercrime punishable includes

content-related offenses such as such cyber libel, which is an unlawful or
prohibited act of libel as defined in Article 355 of RPC committed through a
computer system or any other similar means which may be devised in the
future.

The phrase “acts constitute the offense of cybercrime punishable under

this Act” in Section 4 (c) (4) of RA No. 10175 means that libel defined under
Revised Penal Code committed through computer system (cyber libel) is
punishable under RA No. 10175 and not under RPC. Unfortunately, Section 8
of RA No. 10175, the penal provision of the law, fails to provide a penalty for
cyber libel under Section 4 (c) (4). Thus, the accused for committing cyber libel
should be prosecuted for libel under Revised Penal Code with the qualifying
circumstance of use of information and communications technologies under
Section 6 of RA No. 10175. With this qualifying circumstance, the penalty for
libel under Article 355 of the Code shall be increased one degree higher.
 The place where libelous article was accessed by the offended party in
the internet is not equivalent to the place where the libelous article is “printed
and first published”.  To rule otherwise is to allow the evil sought to be
prevented by the amendment to Article 360, and that was the indiscriminate
laying of the venue in libel cases in distant, isolated or far-flung areas, to
harass an accused. At any rate, Article 360 still allow offended party to file the
civil or criminal complaint for internet libel in their respective places of
residence (Bonifacio vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5,
2010).

b. Prescription for cyber libel - Under Article 90 of the Revised Penal

Code, the crime of libel shall prescribe in one year. In sum, the offended party
must file a complaint for libel with the prosecutor’s office for preliminary
investigation within one year from the time the offended party discovered the
commission of libel. In People vs. Hon. Gines, G.R. No. 83463, May 27, 1991,
the Supreme Court said that the prescriptive period of one year for libel shall
commence to run from the day the alleged libelous article was published.
There is a theory that libel published through the internet is a continuing
crime as long as the defamatory statements are accessible to the public
through the internet. The publication of the libel in the internet is continuing,
and thus, the commission of libel is also continuing. Under this theory, the
one-year prescriptive period for libel shall not run as long as the libelous
statements are still accessible to the public.

It is submitted however that this continuing publication theory will go

against the essence of the rule on prescription, and that is, to fix a reasonable
period within which a criminal action can be instituted. This view will render
the crime of libel imprescriptible since it is of public knowledge that defamatory
writings posted in the internet will be accessible to the public even after several
years have elapsed. Moreover, defamatory articles published in a newspaper
such as inquirer several years ago are still accessible to the public in the
National Library; and yet, the Supreme Court in People vs. Hon. Gines, G.R.
No. 83463, May 27, 1991 did not consider the accessibility of the defamation in
the newspaper as a factor in determining when the prescriptive period will
commence to run.

The law on prescription fixes period within which a criminal case can
filed in the prosecutor’s office for preliminary investigation or in court for trial.
If the crime is punishable under the Revised Penal Code such as murder,
robbery or libel, Article 90 of the Code on prescriptive periods applies. If the
crime is punishable under the special law such RA No. 8042 on illegal
recruitment and RA No. 10175 on cybercrime, Act No. 3326 applies.

Under Act No. 3326, the prescriptive period for a crime under special law
punished by imprisonment for 6 years or more is 12 years. Most of the
penalties under Section 8 of RA No. 10175 prescribes for cybercrimes such as
cybersex defined under Section 4 thereof are imprisonment of more than six
years. Hence, as a general rule the prescriptive period for cybercrime under RA
No. 10175 is 12 years.

One of the cybercrimes defined under Section 4 of RA No. 10175 is cyber

libel. Section 8 of RA No. 10175 prescribes penalties for all cybercrimes under
Section 4 except cyber libel. It seems that through oversight Congress failed to
provide a penalty for cyber libel. Hence, an offender, who committed libel
through the internet, cannot be prosecuted for cyber libel under Section 4 of
RA No. 10175 simply because there is no penalty under Section 8 for
committing it.
 However, libel through the internet is still punishable under Article 355
of the Revised Penal Code. Section 6 of RA No. 10175, using information or
communication technology in committing a crime will upgrade the penalty for it
by one degree. In sum, one, who committed libel through the internet, shall be
prosecuted for libel under the Revised Penal Code with the qualifying
circumstance under RA No. 10175. He cannot be prosecuted for libel under
Section 6 of RA No. 10176 since this provision does not define a crime but
merely provides a modifying circumstance that will adjust the penalty for a
crime punishable under the Revised Penal Code.

Since an offender in committing internet libel can only be prosecuted for

libel under the Revised Penal Code, Article 90 of the Code on prescription
applies. Under this provision, the crime of libel shall prescribe in one year.

c. Cybersex – Cybersex under RA No. 10175 is committed by any

person, who shall wilfully engage, maintain, control, or operate, directly or
indirectly, any lascivious exhibition of sexual organs or sexual activity, with the
aid of a computer system, for favor or consideration.

The element of "engaging in a business" is necessary to constitute the

illegal cybersex. The law actually seeks to punish cyber prostitution, white
slave trade, and pornography for favor and consideration. This includes
interactive prostitution and pornography, i.e., by webcam. The deliberations of
the Bicameral Committee of Congress show a lack of intent to penalize a
"private obscene showing between two private persons although. (Disini vs.
Secretary of Justice, G.R. No. 203335, February 11, 2014).

If the commission of cybersex involves lascivious exhibition of sexual

organs or sexual activity of a child, the offender may be prosecuted for child
pornography under RA No. 9775 qualified by the circumstance of using
computer system under RA No. 10175. However, the offender cannot be
prosecuted for both cybersex and qualified (or cyber) child pornography
because of the rule on double jeopardy (Disini vs. Secretary of Justice, G.R. No.
203335, February 11, 2014).

If the commission of cybersex involves the maintenance of trafficked

victim, the offender may be prosecuted for trafficking in person under RA No.
9208.

d. Cyber child pornography - In RA No. 9208 child pornography is

committed by electronic, mechanical, digital, optical, magnetic or any other
means, responsible persons are liable for child pornography under RA No.
9775. RA No. 9775 is comprehensive enough to include cyber pornography by
requiring a child to show her private parts to a client through the internet. If
child pornography is committed through a computer system, the crime
committed is cyber child pornography under RA No. 10175 and the penalty is
one degree higher.

83. Hazing - Hazing refers to any act that results in physical or

psychological suffering, harm, or injury inflicted on a recruit, neophyte,
applicant, or member as part of an initiation rite or practice made as a
prerequisite for admission or a requirement for continuing membership in
a fraternity, sorority, or organization. Hazing includes paddling, whipping,
beating, branding, forced calisthenics, exposure to the weather, forced
consumption of any food, liquor, beverage, drug or other substance, or any
other brutal treatment or forced physical activity which is likely to adversely
affect the physical and psychological health of such recruit, neophyte,
applicant, or member. Hazing shall also include any activity, intentionally
made or otherwise, by one person alone or acting with others, that tends
to humiliate or embarrass, degrade, abuse, or endanger, by requiring a
recruit, neophyte, applicant, or member to do menial, silly, or foolish
tasks. (Section 2 of RA No. 8049 as amended by RA No. 11053; 2002 Bar
Exam)

The elements of the crime of hazing are: (1) That there is initiation rite
or practice made as a prerequisite for admission or a requirement for
continuing membership in a fraternity, sorority, or organization; (2) That
during the initiation rite or practice, physical or psychological suffering, harm,
or injury is inflicted on a recruit, neophyte, applicant, or member of the
fraternity, sorority or organization; and (3) as a consequence of the hazing,
death, rape, sodomy, or mutilation results.

Initiation or initiation rites refer to ceremonies, practices, rituals, or

other acts, whether formal or informal, that a person must perform or take
part in order to be accepted into a fraternity, sorority, or organization as a full-
fledged member. It includes ceremonies, practices, rituals, and other acts in all
stages of membership in a fraternity, sorority, or organization. (Section 2 of
RA No. 8049 as amended by RA No. 11053)
Organization refers to an organized body of people which includes, but
is not limited to, any club, association, group, fraternity, and sorority. This
term shall include the Armed Forces of the Philippines (AFP), the
Philippine National Police (PNP), the Philippine Military Academy (PMA), the
Philippine National Police Academy (PNPA), and other similar uniformed
service-learning institutions. (Section 2 of RA No. 8049 as amended by RA No.
11053) The Philippine Merchant Marine Academy is included in the term
organization within the meaning of the law. People v. Bayabos, G.R. No.
171222, February 18, 2015) Company or private corporation is covered by the
hazing law. Under RA No. 8049, in no case shall hazing be made a
requirement for employment in any business or corporation.

Failure to allege that the physical or psychological harm were employed

as prerequisite for admission (or a requirement for continuing membership)
would prevent the successful prosecution of the criminal responsibility of the
accused, either as principal or as accomplice, for the crime of hazing. Plain
reference to a technical term “hazing” is insufficient and incomplete, as it is but
a characterization of the acts allegedly committed and thus a mere conclusion
of law. (People v. Bayabos, supra) Prior to RA No. 11053, the crime of hazing is
confined to a situation where the infliction of physical or psychological harm is
a prerequisite for admission in a fraternity, sorority, or organization.
However, there are occasions where the organization will first admit the
neophyte as member, and then, hazing will be made as post-requisite for
admission. Thus, RA No. 11053 expanded the concept of hazing by covering
initiation rite or practice made not only as a prerequisite for admission but
also as a requirement for continuing membership in a fraternity, sorority, or
organization.

Prior to RA No. 11053, the hazing is punishable under RA No. 8049 if as

a consequence of hazing, death, rape, sodomy, mutilation or serious, less
serious or slight physical injuries results. RA No. 8049 does not prescribe
penalty for mere infliction of psychological harm. RA No. 8049 as amended
by RA No. 11053, declares all forms of hazing shall be prohibited in
fraternities, sororities, and organizations. Section 14 thereof prescribes for
penalties for all forms of hazing. However, the penalty is higher where
death, rape, sodomy, mutilation results from hazing.
 a. Malum Prohibitum - Prior to R.A. 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 would negate dolo, which is an
important element of homicide. Hence, the crime committed is only reckless
imprudence resulting in homicide. (Villareal v. People, G.R. No. 151258,
February 1, 2012) Now, the participants of the hazing with or without dolo are
liable for violation of R.A. No. 8049 if the neophyte died as a consequence
thereof.

Instead of amending Revised Penal Code which penalizes mala in se,

where good faith is a defense, the Congress 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, RA No.
8049 as amended, 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
injured shall not be a defense in hazing. The very act of inflicting physical or
psychological pain is a punishable act. Death is just an aggravating
circumstance (Dungo v. People, G.R. No. 209464, July 1, 2015) Section 12 of RA
No. 11053 provides that the defense that the recruit, neophyte, or applicant
consented to being subjected to hazing shall not be available to persons
prosecuted for hazing. Any form of approval, consent, or agreement, whether
written or otherwise, or of an express waiver of the right to object to the
initiation rite or proceeding, which consists of hazing, made by a recruit,
neophyte, or applicant prior to an initiation rite that involves inflicting
physical or psychological suffering, harm, or injury, shall be void and without
any binding effect on the parties.

b. Presence - Generally, mere presence at the scene of the crime does

not in itself amount to conspiracy. (Dungo v. People, supra) However, under RA
No. 8049 as amended by RA No. 11053, mere presence can be a source of
criminal liability. Section 14 punishes all persons who are present in the
conduct of the hazing. However, the penalty is higher if the persons, who
are present during the hazing, are (1) officers of the fraternity, sorority, or
organization; (2) former officers, nonresident members, or alumni thereof; and
(3) members thereof who are intoxicated or under the influence of alcohol or
illegal drugs.

c. Actual participation - The penalty for hazing is also higher if the

person actually participated in the conduct of the hazing. The actual
participants are liable for hazing even if they are not members of the
fraternity, sorority, or organization.

R.A. No. 8049 as amended by RA No. 11053 presents a novel provision

that introduces a disputable presumption of actual participation; and which
modifies the concept of conspiracy. Section 14 thereof provides that the
presence of any person, even if such person is not a member of the
fraternity, sorority, or organization, during the hazing is prima facie
evidence of participation therein as a principal unless such person or persons
prevented the commission of the acts punishable herein or promptly reported
the same to the law enforcement authorities if they can do so without peril
to their person or their family.

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 or
promptly reports the same to the authorities.

Generally, mere presence at the scene of the crime does not 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 or reported the matter to the authorities.
(Dungo v. People, supra; 2018 Bar Exam)

d. Planning – The law punishes all persons, who actually planned

the conduct of the hazing. The original version of RA No. 8049 merely
punished officers, former officers, or alumni of the fraternity, sorority or
organization, who actually planned the hazing. Under this law as amended by
RA No. 11053, any person including a non-member is criminally liable for
planning the conduct of hazing. Even though these planners were not present
when the acts constituting hazing were committed, they shall still be liable as
principals.

e. Adviser – The law also punishes the adviser of a fraternity, sorority,

or or ganizat ion who is present when t he a cts constituting the hazing
were committed and failed to take action to prevent the same from
occurring or failed to promptly report the same to the law enforcement
authorities if such adviser or advisers can do so without peril to their
person or their family. The liability of the adviser arises, not only from his
mere presence in the hazing, but also his failure to prevent the same. (Dungo v.
People, supra)

f. Inducement – Officers or members of a fraternity, sorority, or

organization, who knowingly cooperated in carrying out the hazing by
inducing the victim to be present thereat, are liable for hazing. 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 (Dungo v. People, supra; 2018 Bar
Exam). However, this rule is only applicable if the inducer is an officer, or
member of a fraternity, sorority, or organization.

The accused claim that the information avers a criminal charge of hazing
by actual participation, but the only offense proved during the trial was hazing
by inducement. The information alleged that the accused during a planned
initiation rite and being then officers of APO fraternity used personal violence
upon a neophyte resulting to his death. The “planned initiation rite” as stated in
the information included the act of inducing victim to attend it. Accused not
only induced victim to be present at the resort, but they actually brought him
there. The hazing would not have been accomplished were it not for the acts of
the petitioners that induced the victim to be present. Hence, they are liable for
hazing. (Dungo v. People, supra)

g. Incumbent officers - The incumbent officers of the fraternity,

sorority, or organization concerned shall be jointly liable with those members
who actually participated in the hazing.

h. Owner or lessee – The law punishes the owner or lessee of the place
where hazing is conducted as principal for hazing, when he has actual
knowledge of the hazing conducted therein but failed to take any action to
prevent the same from occurring or failed to promptly report the same to
the law enforcement authorities if they can do so without peril to their
person or their family. (2018 Bar Exam)

Under the old version of RA No. 8048, only owner of the place of
hazing is liable. However, under this law as amended by RA No. 11053, a
lessee can be held also be held liable for hazing. Under the old rule, such
owner is only liable as an accomplice. Now, he is responsible as principal.
Moreover, under the new rule, promptly reporting the matter to the
authorities is an additional defense for such owner.

i. Parents – Under the law, if the hazing is held in the home of one of
the officers or members of the fraternity, sorority, or organization, the
parents shall be held liable as principals for hazing when they have actual
knowledge of the hazing conducted therein but failed to take any action to
prevent the same from occurring or failed to promptly report the same to
the law enforcement authorities if such parents can do so without peril to
their person or their family.

Under the old version of RA No. 8048, parent is only liable as an

accomplice. Under this law as amended by RA No. 11053, he is responsible
as principal. Moreover, under the new rule, promptly reporting the matter to
the authorities is an additional defense for such parent.

j. School authorities - School authorities including faculty

members as well as barangay, municipal, or city officials shall be liable as
an accomplice for hazing conducted by fraternities, sororities, and other
organizations, if it can be shown that: (1) the school or barangay, municipal,
or city officials allowed or consented to the conduct of hazing; or (2) where
there is actual knowledge of hazing, but such officials failed to take any
action to prevent the same from occurring or failed to promptly report to the
law enforcement authorities if the same can be done without peril to their
person or their family.

Even though school authorities and faculty members have had no direct
participation in hazing, they may nonetheless be charged as accomplices if it is
shown that (1) hazing occurred; (2) the accused are school authorities or
faculty members; and (3) they consented to or failed to take preventive action
against hazing in spite actual knowledge thereof (People v. Bayabos, supra) or
to report the matter to the authorities.

The corresponding responsibilities of the principal, accomplice, and

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

Under Section 7 of RA No. 8049 as amended by RA No. 11053,

the faculty adviser or advisers, who accepted his role after being
selected by an accredited fraternity, sorority, or organization, shall be
responsible for monitoring the activities of the fraternity, sorority, or
organization. In case of violation of any of the provisions of this Act, it is
presumed that the faculty adviser has knowledge and consented to the
commission of any of the unlawful acts stated therein.

Under Section 4, 5, 10 and 11 of RA No. 8049 as amended by RA No.

11053, initiation rites are allowed the fraternity, sorority or organization
obtained approvable from school authority, or punong barangay, or city or
municipal mayor, authorities upon written application undertaking that
no harm of any kind shall be committed. During approved initiation rites,
at least two school or barangay, city or municipal representatives must be
present. If hazing is still committed despite their presence, no liability shall
attach to them unless it is proven that they failed to perform an overt act to
prevent or stop the commission thereof.
 Failure to provide school representatives during the approved initiation
rites is also punishable.

1. Stabbing a person without knowledge that he is already dead is impossible

crime. Killing is the criminal act in homicide. But it is impossible to commit the
criminal act of killing if the victim, who is already dead. (Intod vs. CA, G.R. No.
103119, October 21, 1992) However, if the accused, who stabbed the dead
body of the victim, conspired with the one who previously hacked and killed
the victim, the former is liable for murder and not impossible crime because of
the collective responsibility rule. The liability of the accused for murder is
based on the act of his co-conspirator in hacking and killing the victim, which
by fiction of the law shall be treated as the act of both them. (People vs. Callao,
G.R. No. 228945, March 14, 2018)

2. The defense of insanity is in the nature of a confession or avoidance because

an accused invoking it admits to have committed the crime but claims that he
should not be criminally liable therefor because of insanity, which is an
exempting circumstance. Consequently, the accused is tried on the issue of
sanity alone, and if found to be sane, a judgment of conviction is rendered
without any trial on the issue of guilt. An accused invoking the exempting
circumstance of insanity bears the burden of proving it with clear and
convincing evidence because every person is presumed sane. For the defense of
insanity to prosper, it must be proven that the accused was completely
deprived of intelligence, which must relate to the time immediately preceding or
simultaneous to the commission of the offense with which he is charged.
(People vs. Mirana, G.R. No. 219113, April 25, 2018)

2. The accused falsified a notarized Secretary's Certificate by making it appear

that a certain member of the board participated in the meeting where in fact he
is already dead. On the basis of this Certificate, and Deed of Sale, the Registry
of Deeds cancelled the title of the corporation’s property and a new one was
issued. Under RPC, the period tor the prescription of offenses commences from
the day on which the crime is discovered by the offended party, the authorities,
or their agents. However, the offender party constructively discovered the crime
upon registration of the Secretary Certificate with the Deed of Sale in the
Registry of Deeds because of the rule on constructive notice to the entire world;
hence, the period for prescription commences on the date of registration of the
falsified document. The case was dismissed since the 10-year period of
prescription for falsification lapsed because the information was filed more
than 10 years from the registration of the document. (Lim vs. People, G.R. No.
226590, April 23, 2018).

As a general rule under Act 3326, prescription for offense

punishable under special laws begins to run from the date of the commission
of the offense; if the date of the commission of the violation is not known, it
shall be counted form the date of discovery thereof (the blameless ignorance
doctrine). In determining whether it is the general rule or the exception that
should apply in a particular case, the availability or suppression of the
information relative to the crime should first be determined. If the necessary
information, data, or records based on which the crime could be discovered is
readily available to the public, the general rule applies. Prescription shall,
therefore, run from the date of the commission of the crime. Otherwise, should
martial law prevent the filing thereof or should information about the violation
be suppressed, possibly through connivance, then the exception applies and
the period of prescription shall be reckoned from the date of discovery thereof.
Under the law, SALNs are accessible to the public for copying or inspection at
reasonable hours. Under the circumstances, the State is to be presumed to
know of her omissions during the eight-year period of prescription set in Act
No. 3326. (People vs. Parba-Rural, G.R. No. 231884, June 27, 2018).

3. AAA lived rent-free in a house owned by accused. Accused intercepted AAA

at the garage area and held a knife to her back and dragged her to his room
and raped her. Shortly after, police authorities arrived; but accused refused to
release her and detained her for a period of time. Although the initial (forcible)
abduction of AAA may have been absorbed by the crime of rape, the continued
detention of AAA after the rape cannot be deemed absorbed in it. Likewise,
since the detention continued after the rape had been completed, it cannot be
deemed a necessary means for the crime of rape. Hence, the accused is
convicted of rape and slight illegal detention (People vs. Concepcion, G.R. No.
214886, April 04, 2018, Third Division) Note: The qualifying circumstance in
serious illegal detention that the person detained is a female is not alleged in
the information.

If the accused committed robbery, and thereafter, detained the

victim to prevent the police from arresting them, robbery absorbs serious illegal
detention for being incidental (People vs. Astor, G.R. No. L-71765-66, April 29,
1987, Second Division). However, if the accused committed rape, and
thereafter, detained the victim to prevent the police from arresting him, he is
liable for rape and illegal detention. (People vs. Concepcion, G.R. No. 214886,
April 04, 2018, Third Division)

4. The Lago case on tenacious resistance in rape is not anymore controlling.

Among the amendments of the law on rape introduced under R.A. 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 of rape.” (People v.
Sabadlab, G.R. No. 175924, March 14, 2012)

The legislators agreed that Article 266–D is intended to soften the

jurisprudence on tenacious resistance or the Lago principle. (People v. Dulay,
G.R. Nos. 144344–68, July 23, 2002)

The failure to shout or offer tenacious resistance cannot be

construed as a voluntary submission to culprit's desires. (People vs. Villabos,
G.R. No. 228960, June 11, 2018)

It is not necessary for the victim of rape 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 v. Torres, G.R. No. 134766,
January 16, 2004)

Force as an element of rape need not be irresistible. Intimidation is

addressed to the mind of the victim. It must be viewed in light of the woman's
perception and judgment at the time of the commission of the crime. It is
therefore enough that it produces fear that if the victim does not yield to the
bestial demands of the accused, something would happen to her. Intimidation
includes the moral kind as the fear caused by threatening the girl with a knife
or pistol. (People vs. Bayanat, G.R. No. 215749, March 14, 2018)

5. Considering that only two persons are usually involved in rape cases, even
the lone uncorroborated testimony of the victim is enough to prove the crime as
charged, as long as the testimony is clear, positive and probable. In rape
committed by a father against his own daughter, the father's parental authority
and moral ascendancy over his daughter substitutes for violence and
intimidation. (People vs. Clemento, G.R. No. 215202, March 14, 2018)

Accused touched AAA's vagina by using his middle finger, which was
then fully covered by a panty and a short pants. He ceasing therefrom when
AAA swayed off his hand. There being no actual insertion of accused's finger
into AAA's vagina, he cannot be held liable for consummated rape by sexual
assault. Neither is he liable for attempted rape through sexual assault since his
acts cannot be interpreted as demonstrating an intent to actually insert his
finger inside her sexual organ. However, the accused can only be held guilty of
the lesser crime of acts of lasciviousness. (Lutap vs. People, G.R. No. 204061,
February 05, 2018)

6. Mental retardation includes: (1) idiot, whose mental age is two–year old
because his IQ is 0–19; (2) imbecile, whose mental age is seven–year old
because his IQ is 20–49; (3) moron or feebleminded, whose mental age is 12–
year old because his IQ is 50–69; and (4) a person with borderline intelligence
because his IQ is 70–89. (People v. Butiong, G.R. No. 168932, October 19,
2011; People v. Bayrante, G.R. No. 188978, June 13, 2012; People vs. Gilles,
G.R. No. 229860, March 21, 2018)

If the information alleged force, threat, or intimidation without

averment of any mental disability on the part of the victim, the accused can
still be convicted provided that sexual congress and mental incapacity, i.e. the
incapacity to give consent, are proven by clear and convincing evidence (People
vs. Quintos, G.R. No. 199402, November 12, 2014; People vs. Gilles, G.R. No.
229860, March 21, 2018).

Having sexual intercourse with a mentally retarded person is

equivalent to having sexual intercourse with a person through intimidation. If
the Information alleged intimidation as a mode of raping the victim, but the
evidence merely proves her mental retardation, the accused can be convicted of
rape through intimidation. (People v. Balatazo, G.R. No. 118027, January 29,
2004)

Assuming that accused and victim had a romantic relation, carnal

knowledge with victim, even if consensual, would amount to rape due to her
mental disability. Knowledge victim's mental retardation is not an element for
the charge of rape. However, knowledge of her mental condition is important
for purposes of qualifying the charge of rape. (People vs. Martinez, G.R. No.
226394, March 7, 2018)

There are two victims in rape with mentally disability, to wit: (1)
persons deprived of reason; and (2) demented person. The concept of the terms
“deprived of reason” is comprehensive since it includes demented or insane
person and mentally retarded person. On the other hand, the term "demented"
is confined to insane person. If the victim is insane, the accused can be
charged with rape of person deprived of reason or demented person. If the
victim is mentally retarded, the accused should be charged with rape of a
person deprived of reason (People vs. Eleuterio, G.R. No. 219957, April 04,
2018) or statutory rape of a person under 12 years of age (People v. Daniega,
G.R. No. 212201, June 28, 2017).

Describing a mentally retarded person in the information as

demented is improper. However, describing the victim in the information as a
"mentally defective woman” (People vs. Martinez, G.R. No. 226394, March 7,
2018), or “a demented person whose mental age is below 7 years old” (People v.
Caoile, G.R. No. 203041, June 5, 2013) is sufficient compliance with the
constitutional mandate that an accused be informed of the nature of the
charge against him.

If the Information alleged the victim of rape is demented, but the

evidence merely proves her mental retardation, the accused cannot be
convicted of rape of a demented person unless the accused failed to raise the
mistake in the Information as an objection (People v. Ventura, Sr., G.R. No.
205230, March 12, 2014; People vs. Eleuterio, G.R. No. 219957, April 04,
2018)

7. Having sexual intercourse or lascivious conduct with a child constitutes

child prostitution if committed for money, profit, or any other consideration
(People vs. Jalosjos, G.R. Nos. 132875-76, November 16, 2001); or sexual
abuse is committed under coercion or influence of any adult, syndicate or
group. In child prostitution, the victim is called child exploited in prostitution
while in sexual abuse the victim is called child subjected to other abuse
(Section 5 of RA No 7610).

Coercion is either physical or psychological. Taking advantage of

ascendency as a swimming instructor over student is psychological coercion
(People vs. Larin, G.R. No. 128777, October, 7 1998).

The assurance of love, guarantee that she would not get pregnant
by using the "withdrawal method" and the promise of marriage were classified
as "psychological coercion" and "influence" within the purview of Section 5 of
RA 7610. Hence, accused is guilty of sexual abuse (Caballo vs. People, GR No.
198732, June 10, 2013).

Accused cannot be prosecuted for complex crime of rape and

sexual abuse under RA No 7610 because the latter is punishable under special
law. He cannot be prosecuted for both rape and sexual abuse because of the
rule on double jeopardy (People v. Matias, G.R. No. 186469, June 13, 2012 and
Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013).

12 years old or above If the child is 12 years old or above, and the
acts of the accused constitute sexual abuse or child prostitution under RA No.
7610 and rape through sexual assault or acts of lasciviousness, he shall be
prosecuted under RA No. 7610 since this law prescribed a grave penalty
(Dimakuta vs. People, G.R. No. 206513, October 20, 2015). In this case, the
crime should be designated as lascivious conduct under RA No. 7610. (People
vs. Molejon, G.R. No. 208091, April 23, 2018)

If the acts committed upon a child 12 years old or above constitute

sexual abuse and rape through sexual intercourse, he shall be prosecuted
under RPC since this law prescribed a graver penalty. (People v. Matias, G.R.
No. 186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No.
182130, June 19, 2013).

Under 12 years old If the child is under 12 years old, and the acts
of the accused constitute sexual abuse and rape or acts of lasciviousness, the
latter shall be prosecuted penalized as follows: (1) rape through sexual
intercourse; (2) acts of lasciviousness with the penalty of reclusion temporal in
its medium period (Section 5 of RA No. 7610). In the latter case, the crime
should be designated as acts of lasciviousness under RPC in relation to RA No.
7610 (People vs. Molejon, G.R. No. 208091, April 23, 2018) Prior to RA No.
8353 (Rape Law), inserting finger into genital orifice is acts of lasciviousness.
Hence, reclusion temporal in its medium period under RA No. 7610 should be
imposed for acts of lasciviousness committed against a child, who child is
under 12 years old. Under RA No. 8353, inserting finger into genital orifice is
rape through sexual assault where the penalty is prision mayor. The penalty
for rape through sexual assault under RPC as amended by RA No. 8353 is
lighter than that prescribed under RA No. 7610 for acts of lasciviousness
committed against a child, who child is under 12 years old. To impose the
lighter penalty under RPC as amended by RA 8353 is unfair to the victim. It is
not the intention of RA No. 8353 to disallow the imposition of the higher
penalty under RA No. 7610 if the victim is child subjected to sexual abuse, who
is under 12 years of age. Hence, the accused shall be convicted of rape through
sexual assault under RPC with the penalty of reclusion temporal in its medium
period under RA No. 7610 (People vs. Chingh, G.R. No. 178323, March 16,
2011; Ricalde vs. People, 211002, January 21, 2015)

In this situation, the crime should be designated as rape through

sexual assault under RPC in relation to RA No. 7610. (People vs. Tulugan, G.R.
No. 227363, March 12, 2019) If the crime committed against a child, who child
is under 12 years old, is qualified rape through sexual assault, the Chingh case
is not applicable since RA No. 8353 prescribed a grave penalty of reclusion
temporal for it. Hence, the accused should be held liable for qualified rape
through sexual assault with the penalty under RPC (People vs. Bonaagua, G.R.
No. 188897, June 6, 2011; People vs. Pusing, G.R. No. 208009, July 11, 2016).

8. A traffic investigator confiscated the driver's license of complainant after

figuring in a vehicular accident. He then demanded and eventually received
from him the amount of P2,000.00 from complainant in exchange for the
release of his driver's license. Accused employed intimidation to obtain money
from complainant as the act performed by the latter caused fear in the mind of
the former that he might not be able to drive a taxi and earn a living for his
family. Accused was convicted of robbery. (Flores vs. People, G.R. No. 222861,
April 23, 2018)

Before Article 360 of RPC was amended, the rule was that a
criminal action for libel may be instituted in any jurisdiction where the libelous
article was published or circulated, irrespective of where it was written or
printed. Experience had shown that under that old rule the offended party
could harass the accused in a libel case by laying the venue of the criminal
action in a remote or distant place. To forestall such harassment, RA No. 4363,
which amended RPC, lays down specific rules as to the venue of the criminal
action so as to prevent harassment arising from out-of-town libel suits. (People
vs. Macasaet, G.R. No. 196094, March 5, 2018)

As a general rule, venue for libel is either province or city where

the libelous article is printed and first published or where any of the offended
parties actually resided at the time of the commission of the offense. However,
if the offended party is a public officer, there is a third optional venue, and that
is, province, city or Manila where he held office at the time of the commission
of the offense. In all cases, the criminal action shall be filed in the Regional
Trial Court.

9. In a bigamy case, accused alleged that complainant, his wife, acquired

Canadian citizenship, obtained a divorce, and thereafter, remarried. By raising
divorce, it is incumbent upon the accused to show that it was validly obtained
in accordance with complainant's national law (e.g. Canadian law) prior to the
celebration of the second marriage. In this case, accused presented a certificate
of divorce allegedly issued by the registrar of the Supreme Court of British
Columbia. The defense was rejected. First, the divorce decree required to prove
the fact of divorce is the judgment itself as rendered by the foreign court and
not a mere certification. Second, assuming the certificate of divorce may be
considered as the divorce decree, it was not accompanied by a certification
issued by the proper Philippine diplomatic or consular officer stationed in
Canada, as required under Section 24 of Rule 132. Lastly, no copy of the
alleged Canadian law was presented by the defense. Thus, it could not be
reasonably determined whether the subject divorce decree was in accord with
complainant's national law. Accused was convicted of bigamy. (Sarto vs.
People, G.R. No. 206284, February 28, 2018)

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him/her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (par. 2 of Article 26 of the Family
Code) This rule includes cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them
becomes naturalized as a foreign citizen and obtains a divorce decree. The
Filipino spouse should likewise be allowed to remarry as if the other party were
a foreigner at the time of the solemnization of the marriage. (Republic v.
Orbecido III, G.R. No. 154380, October 5, 2005) However, Orbecido case will
not apply if there is no competent evidence concerning naturalization of the
alien spouse and the divorce decree, which capacitated the alien spouse to
remarry. (Sarto vs. People, supra)

10. Information alleged that publisher and writer of Malaya with address at
Port Area, Manila City defamed private complainant by writing and publishing
a defamatory article in the Malaya. The Port Area, Manila is the editorial and
business offices of Malaya. This is a compliance with the rule requiring
allegation in the information of the place where the alleged defamatory article
was printed and first published. The Information need not parrot the provisions
of Article 360 of the RPC and expressly use the phrase "printed and first
published." If there is no dispute that the place of publication indicated in the
Information is the place where the alleged defamatory article was "printed and
first published," then the law is substantially complied with. After all, the filing
of the Information before an RTC of Manila would forestall any inclination to
harass the accused. (People vs. Macasaet, G.R. No. 196094, March 5, 2018)

11. The elements of trafficking in person are as follows: (1) The act of
recruitment, transportation, transfer or harboring, or receipt of persons with or
without the victim's consent or knowledge, within or across national borders;
(2) The means used which include "threat or use of force, or other forms of
coercion, abduction, fraud, deception or abuse of power or of position, taking
advantage of the vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another; this means as an element can be dispensed with when the victim is a
minor and (3) The purpose of trafficking is exploitation which includes
"exploitation or the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery, servitude or the removal or sale of organs.
(People vs. De Dios, G.R. No. 234018, June 06, 2018)

AAA was first lured to prostitution when accused offered her to a

male customer and paid her P400.00 for the transaction. Several other
transactions transpired thereafter. Accused would transact with the customers
and then pay AAA each time for her service. It did not matter that there was no
threat, force, coercion, abduction, fraud, deception or abuse of power that was
employed by accused when she involved AAA in her illicit sexual trade. AAA
was still a minor when she was exposed to prostitution by the prodding,
promises and acts of accused. Trafficking in persons may be committed also by
means of taking advantage of the persons' vulnerability as minors. Accused
was convicted of qualified trafficking in person. (People vs. De Dios, G.R. No.
234018, June 06, 2018)

Accused deceived 5 complainants, who were mostly minors, for

they are made to believe that they will be working as house helpers in Cagayan
De Oro City with an enticing salary of P1,500.00 per month. She told them that
they would be allowed to go home once a week. However, the complainants
were transported to Marawi City. The complainants would not have agreed or
would not have been allowed by their parents if accused would directly offer
them work at Marawi City. The accused deliberately fabricated a story to
delude her victims and their parents. When complainant asked for their salary,
they were told that it had already been given to accused. This is slavery.
Accused was convicted of trafficking in person qualified by the circumstance of
minority and large scale. (People vs. Nangcas, G.R. No. 218806, June 13, 2018)

12. While sourced from the same act, i.e., the issuance of a check subsequently
dishonored, estafa and violation of B.P. Blg. 22 are separate and distinct from
each other because they pertain to different causes of action. The differences
between the two are as follows: (1) Damage and deceit are essential elements
for estafa, but are not so for violation under B.P. Blg. 22, which punishes the
mere issuance of a bouncing check; (2) under BP Blg. 22, mere issuance of a
check that is dishonored gives rise to the presumption of knowledge on the
part of the drawer that he issued the same without sufficient funds and hence
punishable which is not so under the Penal Code; (3) a drawer of a dishonored
check may be convicted under BP Blg 22 even if he had issued the same for a
preexisting obligation, while such circumstance negates criminal liability for
estafa; (4) specific and different penalties are imposed in each of the two
offenses; (5) estafa is essentially a crime against property, while violation of BP
Blg 22 is principally a crime against public interest as it does injury to the
entire banking system; (6) estafa are mala in se, while those of BP Blg, 22 are
mala prohibita. (Batac vs. People, G.R. No. 191622, June 06, 2018)

14. Treacherously killing the mayor while in the performance of his duty
constitute a complex crime of direct assault with murder. (People vs. Siega,
G.R. No. 213273, June 27, 2018)

15. Accused gave unwarranted benefits and advantage to several contractors

by allowing them to deploy their equipment ahead of the scheduled public
bidding. Under law, a public contract shall be awarded to the lowest
prequalified bidder. The successful bidder may be allowed to commence work
only upon receipt of a Notice to Proceed. They are liable for violation of Section
3 (e) of RA No. 3019. (Abubakar vs. People, G.R. No. 202408, June 27, 2018)

16. In Arias v. Sandiganbayan, G.R. Nos. 81563 and 82512, December 19,
1989, the property bought by the City is overpriced. When the accused was
appointed as treasurer, the sale of the property had already been
consummated. Accused was charged with violation of Section 3(e) of R.A. No.
3019 for causing damage to the government through manifest partiality and
evident bad faith. The only evidence presented by the prosecution is his
signature on the voucher. He was acquitted. Heads of offices can rely to a
reasonable extent on their subordinates on preparation of bids, purchase of
supplies, or negotiations. Any executive head agencies or commissions can
attest to the volume of papers that must be signed. Thus, executive head
cannot be convicted on the sole basis of signature or approval appearing on a
voucher. To sustain a conspiracy charge and conviction, evidence must be
presented other than her signature on the voucher.

The principle in the Arias case is not applicable in the following

cases:

a. If other than the accused’s signature on the voucher,

circumstances show evident bad faith, or manifest partiality such as: (a) 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 v. People, G.R. No. 164921, July 8, 2005); or
(b) where accused approved the voucher without indication of the retention
money required by law, and he even inspected the construction site of hospital
boat being constructed, in which he should have noticed the financial
weakness of the contractor and the defective works (Rivera v. People, G.R. No.
156577, December 3, 2014);

b. If other than the accused’s signature on the voucher,

circumstances show gross inexcusable negligence such as where there is
deviation from ordinary procedure, which necessitate further investigation –
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 another person and not to Kelly Lumber (Cruz v. The Hon.
Sandiganbayan, G.R. No. 134493, August 16, 2005);

In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, J.

Perlas-Bernabe, the accused in his capacity as Chairman of the Inspection and
Acceptance Committee, signed the 16 certificates of acceptance, inventory, and
delivery of articles despite its incompleteness or lack of material dates, while
co-accused certified to the correctness of the Inspection Report Forms even if
no such deliveries were made. Since there are reasons for the heads of offices
to further examine the documents in question, accused cannot seek refuge by
invoking the Arias doctrine. The Arias doctrine cannot exonerate accused from
criminal liability because there were circumstances that should have prompted
them to make further inquiries on the transactions subject of this case e.g. the
irregular mobilization of contractors prior to the scheduled public bidding, and
contract which contains a patently illegal stipulation and advance payment
without appropriate documents such as purchase orders and delivery receipts
to support this disbursement. (Abubakar vs. People, G.R. No. 202408, June 27,
2018)

c. 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 in
approving the cash advances in the amount of P18 million to paymaster
despite of the failure to liquidate previous cash advances (Jaca v. People, G.R.
No. 166967, January 28, 2013); and d. If the documents involving the release
of funds are not so voluminous so as to preclude him from studying each one
carefully. (Santillano v. People, G.R. Nos. 175045–46, March 3, 2010)
17. The payment, indemnification, or reimbursement of, or compromise on the
amounts or funds malversed or misappropriated, after the commission of the
crime, does not extinguish the accused's criminal liability or relieve the
accused from the penalty prescribed by the law. At best, such acts of
reimbursement may only affect the offender's civil liability, and may be credited
in his favor as a mitigating circumstance analogous to voluntary surrender.
Accused enjoys the mitigating circumstance of voluntary surrender, due to his
partial restitution of the amount malversed (Valenzuela vs. People, G.R. No.
205693, February 14, 2018)

18. Sec. 38 of R.A. No. 9344 on suspension of service of sentence of a minor

does not distinguish between a minor who has been convicted of a capital
offense and another who has been convicted of a lesser offense. Hence, the
Court should also not distinguish and should apply the automatic suspension
of sentence to a child in conflict with the law who has been found guilty of a
heinous crime. Moreover, the legislative intent, to apply to heinous crimes the
automatic suspension of sentence of a child in conflict with the law can be
gleaned from the Senate deliberation. In fact, the Court En Banc promulgated
on November 24, 2009, the Revised Rule on Children in Conflict with the Law,
which echoed such legislative intent. Although suspension of sentence still
applies even if the child in conflict with the law is already 18 years of age or
more at the time the judgment' of conviction was rendered, however, such
suspension is only until the minor reaches the maximum age of 21. Appellant
is now 34 years old, thus, the service of his sentence will not anymore be
suspended. However, he shall be given the benefit of being confined in an
agricultural camp or any other training facility. (People vs. Rupisan, G.R. No.
226494, February 14, 2018)

19. When a special law adopts the technical nomenclature of the penalties (e.g.
prison mayor) in RPC, the intention of the law is to adopt the provisions under
this Code on imposition of penalty (People v. Simon, G.R. No. 93028, July 29,
1994). Special aggravating circumstance of organized/syndicated crime group
(People v. Esparas, G.R. No. 120034, July 10, 1998); The privileged mitigating
circumstance of minority (People v. Montalaba, G.R. No. 186227, July 20,
2011; People v. Musa, G.R. No. 199735, October 24, 2012); and special
aggravating circumstance of quasi-recidivism (People v. Salazar, G.R. No.
98060, January 27, 1997) were appreciated in malum prohibitum crime where
the law punishing it adopts the technical nomenclature of the penalty of RPC.
The penalty for illegal possession of loose firearm shall be applied in its
minimum period because of the mitigating circumstance of confession
(Jacaban v. People, G.R. No. 184355, March 23, 2015), and the penalty for
sexual abuse (Malto v. People, G.R. No. 164733, September 21, 2007), that for
fencing (Cahulugan vs. People, G.R. No. 225695, March 21, 2018, Perlas
Bernabe) and that for violence against woman (Melgar vs. People, G.R. No.
223477, February 14, 2018, Perlas-Bernabe) shall be applied in its medium
period in the absence of modifying circumstance. If the special law has not
adopted the technical nomenclature of penalties in the Revised Penal Code, the
intention of the law is not to adopt the provisions of this Code on imposition of
penalties. Moreover, modifying circumstances cannot be appreciated since the
penalty not borrowed from the Code has no periods. The crime has no
attempted or frustrated stage since this penalty cannot be graduated one or
two degrees lower. The Simon principle is not applicable if the crime committed
involved dangerous drugs because R.A. No. 9165 has a special rule on the
application of the provisions of the Revised Penal Code. Under Section 98 of
R.A. No. 9165, notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code shall not apply to the provisions of this
Act, except in the case of minor offenders.

19. Accused has a dating and sexual relationship with AAA resulting in BBB's
birth. He failed to provide BBB support ever since the latter was just a year old.
Accused is charged with psychological violence against woman under Section 5
(i) of RA No. 9262 for failure to give support which "caused mental or emotional
anguish, public ridicule or humiliation to AAA and BBB. However, no evidence
was presented to show that deprivation of support caused either AAA or BBB
any mental or emotional anguish. However, the accused can be convicted of
economic violence against woman under Section 5 (e), which is necessarily
included in the charge of psychological violence against woman under Section
5 (i) of RA No. 9262. Deprivation or denial of support, by itself and even
without the additional element of psychological violence, is already specifically
penalized therein as economic violence. (Melgar vs. People, G.R. No. 223477,
February 14, 2018, Perlas-Bernabe)

20. The victim was shot while accused was robbing the passengers of a
jeepney. Even if victim's bag was not taken, accused are liable for special
complex crime of robbery with homicide. In this special complex crime, it is
immaterial that the victim of homicide is other than the victim of robbery, as
long as homicide occurs by reason of the robbery or on the occasion thereof.
(People vs. Madrelejos, G.R. No. 225328, March 21, 2018)

21. Fencing is a malum prohibitum, and PD 1612 creates a prima facie

presumption of Fencing from evidence of possession by the accused of any
good, article, item, object or anything of value, which has been the subject of
robbery or theft; and prescribes a higher penalty based on the value of the
property. (Cahulugan vs. People, G.R. No. 225695, March 21, 2018, Perlas
Bernabe) The accused should have been forewarned that the soft drinks came
from an illegal source, as his transaction with the thief did not have any
accompanying delivery and official receipts, and that the latter did not demand
that such items be replaced with empty bottles, contrary to common practice
among dealers of soft drinks. He should have known that the goods are stolen.
He was convicted of fencing. (Cahulugan vs. People, G.R. No. 225695, March
21, 2018, Perlas Bernabe)

22. RA No. 10951 amended RPC by prescribing lesser penalties for theft
through the adjustment of the values of the properties stolen on which the
penalties for theft is based taking into consideration the value of the money in
2017. However, RA No. 10951 failed to adjust the penalties for fencing. This
development would then result in instances where a fence, which is
theoretically a mere accessory to the crime of robbery or theft, will be punished
more severely than the principal of such latter crimes. This incongruence in
penalties therefore, impels an adjustment of penalties. Pursuant to Article 5 of
RPC, the SC furnished a copy of the decision on fencing the President through
DOJ, the Senate President, and the House Speaker to alert them on the
excessive penalties for fencing.

23. There is no showing whatsoever that accused had knowledge of the

insufficiency of funds of the check he endorsed to private complainant.
Admittedly, the checks received by private complainant were checks issued and
paid to accused by a certain Ham. Upon notice that the subject checks were
dishonored, accused immediately searched for Ham but the same proved to be
futile considering that the latter already left the country. (Juaquico vs. People,
G.R. No. 223998, March 05, 2018)
 The business relationship between private complainant and
accused is already 16-year, and the former had the practice of accepting the
checks of clients of the latter, even if he did not personally know them. Thus,
there is no need for the accused to assure the complainant that the subject
checks would be sufficiently funded upon maturity before accepting the same.
Clearly, private complainant was not deceived to accept the subject checks but
did so out of a standard procedure which he and accused developed over the
years. (Juaquico vs. People, G.R. No. 223998, March 05, 2018).