Bar Rev Crim Law

2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER

JUDGE MARLO B. CAMPANILLA
PRO REO
In dubio pro reo is means "when in
doubt, for the accused. Intimately related
to the in dubio pro reo principle is the rule
of lenity. The rule applies when the court is
faced with two possible interpretations of a
penal statute, one that is prejudicial to the
accused and another that is favorable to
him. The rule calls for the adoption of an
interpretation which is more lenient to the
accused (Intestate estate of Gonzales vs.
People, G.R. No. 181409, February 11,
2010).
POSITIVIST THEORY AND CLASSICAL
THERORY
The positivist theory states that the
basis for criminal liability is the sum total
of the social and economic phenomena to
which the offense is expressed. The purpose
of penalties is to secure justice. The
penalties imposed must not only be
retributive but must also be reformative, to
give the convict an opportunity to live a new
life and rejoin society as a productive and
civic-spirited member of the community.
The adoption of the aspects of the Positivist
theory is exemplified by the indeterminate
sentence law, impossible crime, privilege
mitigating circumstance of minority and
modifying
circumstances,
rule
on
imposition of penalties for heinous and
quasi-heinous crimes) (Joya vs. Jail Warden
of
Batangas,
G.R.
Nos.
15941819, December 10, 2003;).
Under the classical theory, man is
essentially a moral creature with an
absolutely free will choose between good
and evil. When he commits a felonious or
criminal act, the act is presumed to have
been done voluntarily, i.e. with freedom,
intelligence and intent. Man, therefore,
should be adjudged or held accountable for
wrongful acts so long as free will appears
unimpaired (People vs. Estrada, G.R. No.
130487, June 19, 2000). Since the Revised
Penal Code is based on the classical school
of thought, it is the identity of the mens rea
which is considered the predominant
consideration and, therefore, warrants the
imposition of the same penalty for
conspirators on the consequential theory
that the act of one is thereby the act of all
(Hon. Sandiganbayan, Honrado, G.R. No.
115439-41, July 16, 1997). Under this
theory, the criminal liability is based on the
result of the felonious act (proximate cause
rule).
CHARACTERISTIC OF CRIMINAL LAW
There are three characteristics of
criminal law, to wit: (1) generality (2)
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territoriality, and (3) prospectivity. The

general,
territorial
and
prospective
characteristics of criminal law are
principles that define and demarcate the
scope and limitation of the operation of
criminal law. Under these three principles,
the operation or enforceability of criminal
law is limited to wrongful acts committed
on or after its effectivity (prospectivity)
within the territory of the Philippines
(territoriality) by person living and
sojourning therein (generality).
GENERALITY
Generality
principle is akin to territoriality principle
in the sense that the demarcating factor of
both principles is the territory of the
Philippines. Under generality principle,
criminal law is enforceable to person living
or sojourning in the territory of the
Philippines.
Under
the
territoriality
principle, criminal law is applicable only to
criminal act committed within the territory
of the Philippines. But the concept of
generality is different from territoriality.
The applicability of territoriality principle
or generality principle will depend on the
issue raised by the accused in questioning
the jurisdiction of the court. If the accused
attacks the jurisdiction of the court
because of the unique characteristic of his
person (e.g. he is a foreigner, military,
hermit, primitive, ambassador, legislator,
President), the applicable principle is
generality. If the accused attacks the
jurisdiction of the court due to the unique
characteristic of the place where the crime
was committed (e.g. the place of
commission is foreign vessel, embassy or
high sea) etc, the applicable principle is
territoriality.
1. Military officers - The Revised
Penal Code and special criminal laws are
enforceable against military men living or
sojourning in the Philippines. However, CA
408 (Articles of War) which vests
jurisdiction over members of the AFP to
the courts-martial. RA 7055 (AN ACT
STRENGTHENING CIVILIAN SUPREMACY
OVER THE MILITARY) did not divest the
military courts of jurisdiction to try cases
involving "service-connected crimes or
offenses" under CA 408 (Example: Mutiny
or sedition, quarrels, frays; disorders,
breaking an arrest or escaping from
confinement, releasing prisoners without
proper authority, wrongful appropriation of
captured property, corresponding with, or
aiding the enemy, spies, dueling, fraud
against the government affecting matters
and equipment). In fact, RA No. 7055
mandates that these service-connected
crimes shall be tried by the court-martial
(Navales v. Abaya,
G.R. No. 162318,
October 25, 2004). CA 408 is a law of
preferential application since it excludes

members of the AFP from the operation of
the Revised Penal Code and special
criminal laws if the crimes committed by
them are service-connected as defined by
RA 7055.
2. Consular officers - Despite the
ruling in Schneckenburger vs. Moran,
consular officers and employees are now
enjoying
immunity
from
criminal
prosecution of acts performed in the
exercise of consular function under 1967,
Convention on Consular Relation. Slander
(Liang vs. People, GR NO 125865, January
28, 2000) or reckless imprudence resulting
in homicide is not function-related. Consul
is liable for committing this crime.
TERRITORIALITY
PRINCIPLE:
Under the principle of territoriality, the
Philippines has jurisdiction over crimes
committed inside its territory except as
provided in the treaties and laws of
preferential application.
1. Embassy - 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 (See: Reagan vs.
Commission on Internal Revenue, 30
SCRA 968, En Banc; Answers to 2009 Bar
Examination Questions by UP Law
Complex). However, jurisdiction of the
Philippines over the embassy is limited or
restricted by the principles of inviolability
of diplomatic premises, which is a
generally
accepted
principle
of
international law. Warrant of arrest cannot
be served inside US embassy without
waiver of American government of its right
under the principle of inviolability.
2. English rule - There are two
fundamental rules in International Law
regarding crimes committed aboard a
foreign merchant vessel (not military
vessel), if the same is within the 12-mile
territorial water (not internal or archipelagic
water or high seas) of the Philippines to
wit: (1) French rule - Crimes committed
aboard a foreign merchant vessel within
the territorial water of the Philippines are
subject to the jurisdiction of the flag state
(extra-territoriality principle) unless their
commission affects the peace and security
of our country. (2) English rule Crimes
committed aboard a foreign merchant
vessel within the territorial water of the
Philippines are subject to jurisdiction of
the Philippines (territoriality principle)
unless their commission does not affect its
peace and security, or has no pernicious
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effect therein. It is the English rule that

obtains in this jurisdiction.
3. 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
has jurisdiction over crimes committed
therein. However, the Philippines can
exercise jurisdiction to arrest any person
or to conduct any investigation in
connection with any crime committed on
board the ship during its passage in the
following cases: (1) if the consequences of
the crime extend to the coastal State; (2) if
the crime is of a kind to disturb the peace
of the country or the good order of the
territorial sea; (3) if the assistance of the
local authorities has been requested by the
master of the ship or by a diplomatic agent
or consular officer of the flag State; or (4) if
such measures are necessary for the
suppression of illicit traffic in narcotic
drugs or psychotropic substances.
4. Drug trafficking - Following the
English rule, the Philippines has no
jurisdiction over transportation of opium
in a foreign vessel in transit in territorial
water of our country because possession of
opium does not have a pernicious effect on
our country (U.S. vs. Look Chaw). But
under the Convention of the law of the
Sea,
the
Philippines
can
exercise
jurisdiction to arrest any person or to
conduct
any
investigation
involving
transportation of dangerous drugs since
this is a measure necessary for the
suppression of illicit traffic in narcotic
drugs or psychotropic substances.
EXTRA-TERRITORIALITY - Under
the principle of extra-territoriality, the
Philippines has jurisdiction over crimes
committed outside its territory for those
five instances mention in Article 2 such as
crime committed in vessel of Philippines
registry (ownership is not material),
function-related crime committed by
public officer (such as corruption or direct
bribery), crimes against national security
(such as treason, espionage; rebellion is
not a crime against national security), and
crime against law of nation such as piracy
and mutiny). In People vs. Tulin, G.R. No.
111709, August 30, 2001- Piracy is an
exception to the rule on territoriality in
criminal law (Article 2). The same principle
applies even if accused were charged, not
with a violation of qualified piracy under
the penal code but under a special law, PD
No. 532 which penalizes piracy in
Philippine waters. It is likewise, wellsettled that regardless of the law
penalizing the same, piracy is a
reprehensible crime against the whole
world.

PROSPECTIVITY: Article 22 of RPC
- If the court in trying an accused, who
committed a crime prior to the passage of
the law, should give retroactive effect to
the law provided that: (1) it is favorable to
the accused and (2) the accused is not a
habitual delinquent (Article 22). Ex post
facto law - Congress in passing a law can
insert retroactive effect provision therein
subject to the Constitution of ex post facto
law. If the retroactive provision of the law
has passed the constitutional test on
prohibition against ex post facto law, the
court must give retroactive effect to this
law even if the accused is a habitual
delinquent. Nullum crimen poena sine lege
If the law repeals a previous law or
provision defining a crime, the applicable
principle is not Article 22 of RPC but
nullum crimen poena sine lege (There is no
crime when there is no law punishing it).
Since the intention of the new law is to
decriminalize an act punishable by the
repealed law, the accused should be
acquitted or released if the already
convicted, even though he is a habitual
delinquent.
X committed crime under RA No.
6425, the penalty for which is life
imprisonment. RA No. 7659 amended RA
No. 6425 by prescribing the penalty of
reclusion temporal. Should RA No. 7659 be
given retroactive effect? Answer: Yes. The
maximum duration of reclusion temporal is
40 years of imprisonment while life
imprisonment has no duration. Thus,
reclusion perpetua is a lighter penalty than
life imprisonment. The amendatory law,
being more lenient and favorable to the
accused than the original provisions thereof
should be accorded retroactive application
(People vs. Morilla, GR No. 189833,
February 05, 2014).
RA
No. 9346 prohibits
the
imposition of death penalty, prescribes
reclusion perpetua in lieu of death penalty
or life imprisonment if the special law does
not use the nomenclature of the penalties
under RPC and declares a person
sentenced to reclusion perpetua as a
prescribed or reduced penalty is ineligible
for parole. This law has a retroactive effect.
Penal laws which are favorable to accused
are given retroactive effect. This principle
is embodied under Article 22 of RPC,
which provides: Penal laws shall have a
retroactive effect insofar as they favor the
persons guilty of a felony, who is not a
habitual criminal (People vs. Talaro, et.al.,
GR No. 175781, March 20, 2012, Justice
Peralta).
REPEAL: Decriminalization - Repeal
of a penal law deprives the courts of
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jurisdiction to punish persons charged

with a violation of the old penal law prior
to its repeal (Sindiong and Pastor, 77 Phil.
1000; Binuya, 61 Phil. 208; U.S. vs. Reyes,
10 Phil. 423; U.S. vs. Academia, 10 Phil.
431; Arizala vs. Court of Appeals, G.R. No.
43633, September 14, 1990; Almuete, et
al., G.R. No. L-265, February 27,19 76).
The intention of the new law is to
decriminalize an act punishable of old law.
Thus, person cannot be punished for
subversion under RA 1700, which was
repealed by RA 7637, even though he is a
habitual delinquent. New regulation Repeal with re-enactment of a penal law
does not deprive the courts of jurisdiction
to punish persons charged with a violation
of the old penal law prior to its repeal.
Such repeal even without a saving clause
would not destroy criminal liability of the
accused (U.S. vs. Cana, 12 Phil. 241). The
intention of the new law is not to
decriminalize an act punishable of old law
but merely to provide new regulation. If
the new law is favorable to the accused,
who is not a habitual delinquent, it shall
be given retroactive effect. Example: A
was charged for the crime of rape under
Article 336 of RPC for raping his minor
daughter. However, RA 8353 expressly
repealed Article 336 but re-enacted the
provision on rape by reclassifying it as a
crime against person, redefining it and
prescribing a graver penalty for the
commission thereof. The repeal of Article
336 does not deprive the courts of
jurisdiction to try and punish A for rape
under Article 336. RA No. 8353 shall not
be given retroactive effect since it is not
favorable to the accused.
DECRIMINALIZATION OF VAGRANCY BY
RA NO. 10158
Article 202 of the Revised Penal
Code as amended by RA No. 10158
provides:
Article 202. Prostitutes; Penalty. For the purposes of this article, women who,
for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are
deemed to be prostitutes.
Any person found guilty of any of
the offenses covered by this article shall be
punished by arresto menor or a fine not
exceeding 200 pesos, and in case of
recidivism, by arresto mayor in its medium
period to prision correctional in its minimum
period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court.
RA No. 10158 has decriminalized
vagrancy by omitting portions of Article 202
involving such crime. A reading of the
Senate deliberation pertaining to the

passage of law decriminalizing vagrancy
shows that they considered vagrants as
victims of poverty and that the law on
vagrancy serves to oppress the very people
that the government sought to protect. In
view of the new policy of the State
decriminalizing
vagrancy,
which
is
embodied in RA No. 10158, ordinance,
which
punishes
vagrancy,
should
be declared as contrary to law, and hence,
invalid. Settled is the rule that what the
national legislature expressly allows by law,
a local legislature may not disallow by
ordinance or resolution (Lina vs. Pana, G.R.
No. 129093, August 30, 2001). The spring
cannot rise higher than its source. As aptly
explained by Justice Nachura in his book,
An ordinance must not be contrary to the
Constitution or law. Prohibited activities may
not be legalized in the guise of regulation;
activities allowed by law cannot be
prohibited,
only
regulated. Moreover,
Section 4 of RA No. 10158 provides that All
laws, presidential decrees, executive orders,
rules and regulations and other issuances,
or any part thereof, inconsistent with this
Act are hereby repealed, modified or
amended accordingly. An ordinance on
vagrancy is a law, which is inconsistent
with RA No. 10158. Hence, such local
statute is deemed repealed.
RA No. 10158 shall be given
retroactive effect even if the offender or
accused is a habitual delinquent. Section 2
of the said law provides All pending cases
under the provisions of Article 202 of the
Revised Penal Code on Vagrancy prior to its
amendment by this Act shall be dismissed
upon effectivity of this Act while Section 3
thereof states All persons serving sentence
for violation of the provisions of Article 202
of the Revised Penal Code on Vagrancy prior
to its amendment by this Act shall be
immediately released upon effectivity of this
Act: Provided, That they are not serving
sentence or detained for any other offense or
felony. Article 22 of the Revised Penal
Code, which requires that the offender
must not be a habitual delinquent to give
retroactive effect to a penal law, is not
applicable since Sections 2 and 3 of RA No.
10158
expressly
provide
retroactive
application to the law without distinction,
whether the offender is a habitual
delinquent or not.
MISTAKE OF FACT PRINCIPLE:
Requisites: (1) That the acts done
would have been lawful had the facts been
as the accused believed them to be (2) that
the mistake of fact is not due to negligence
or unlawful intent of the offender. The
Supreme Court in several cases had
applied the mistake of fact doctrine,
which
allowed
the
accused,
who
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committed a crime on a mistaken belief, to

enjoy the benefit of the justifying
circumstance of self-defense (United States
vs. Ah Chong, 15 Phil., 488), defense of
person and right (US vs. Bautista, G.R. No.
10678 August 17, 1915), defense of honor
(United States vs. Apego, 23 Phil. 391),
performance
of
duty,
(People
vs.
Mamasalaya, G.R. No.L-4911, February
10,
1953),
and
the
exempting
circumstance of obedience of an order of
superior officer (People vs. Beronilla, G.R.
No. L-4445, February 28, 1955). In Ah
Chong, the accused, who believed that the
victim was a robber and that his life was in
danger because of the commencement of
unlawful aggression, was acquitted due to
mistake of fact doctrine in relation to the
rule on self-defense. In Oanis vs. Galanta,
the accused, who believed that the
sleeping victim is a notorious criminal to
be arrested by them, was held guilty of
murder for shooting him since the mistake
of fact principle in relation to performance
of duty is not applicable. Second element
is not present since they did not ascertain
first his identify despite opportunity. The
first element is not likewise present since
the killing of victim believed to be a
criminal was not necessary consequence of
the due performance of duty of the
accused as police officers.
The gist of the theft is the intent to
deprive another of his property in a
chattel, either for gain or out of
wantonness or malice to deprive another of
his right in the thing taken. This cannot be
where the taker honestly believes the
property is his own or that of another, and
that he has a right to take possession of it
for himself or for another, for the
protection of the latter. However, the belief
of the accused of his ownership over the
property must be honest and in good faith
and not a mere sham or pretense. If the
claim is dishonest, a mere pretense, taking
the property of another will not protect the
taker (Gaviola vs. People, G.R. No. 163927,
January 27, 2006). This belief of
ownership as a defense in theft is in
accordance with the mistake of fact
doctrine.
X informed the authorities regarding
armed rebel elements on board a vehicle in
a certain barangay. Several policemen,
Barangay officers and members of the Civil
Home Defense Force (CHDF) responded to
information and set a check point. X
pointed at an approaching jitney occupied
by rebels. They flagged down the vehicle but
the same did not stop. They attacked the
vehicle with automatic weapons by firing
directly thereat. One died and another was
wounded. It turned out however that the
victims are unarmed innocent civilians. Are

those responsible for the death and injuries
of the victims liable for homicide? Is the
doctrine of mistake of fact applicable?
Answer: They are liable for homicide
and attempted homicide. The duty of those
manning the check point is to identify the
occupants of their suspect vehicle and
search for firearms inside it to validate the
information they had received; they may
even effect a bloodless arrest. While,
rebellion is a continuing offense, they
cannot open fire at or kill the suspects
under any and all circumstances. There is
no evidence showing that they were placed
in real mortal danger in the presence of the
victims. Hence, 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, Justice Peralta).
VOLUNTARINESS Concurrence
of freedom, intelligence and intent makes
up the criminal mind behind the
criminal act. Thus, to constitute a crime,
the act must, generally and in most cases,
be accompanied by a criminal intent.
Actus non facit reum, nisi mens sit rea. No
crime is committed if the mind of the
person performing the act complained of is
innocent (People vs. Ojeda, G.R. Nos.
104238-58, June 3, 2004). Voluntariness
is an element of crime, whether committed
by dolo or culpa or punishable under
special law. The act to be considered a
crime must be committed with freedom
and
intelligence.
In
addition
to
voluntariness, intentional felony must be
committed with dolo (malice), culpable
felony with culpa, and mala prohibita
under special law with intent to perpetrate
the act or with specific intent (such as
animus possidendi in illegal possession of
firearm). Presumption of voluntariness: In
the determination of the culpability of
every criminal actor, voluntariness is an
essential
element.
Without
it,
the
imputation of criminal responsibility and
the imposition of the corresponding
penalty cannot be legally sanctioned. The
human
mind
is
an
entity,
and
understanding it is not purely an
intellectual process but is dependent to a
large
degree
upon
emotional
and
psychological appreciation. A mans act is
presumed voluntary. It is improper to
assume the contrary, i.e. that acts were
done unconsciously, for the moral and
legal presumption is that every person is
presumed to be of sound mind, or that
freedom and intelligence constitute the
normal condition of a person (People vs.
Opuran, G.R. Nos. 147674-75, March 17,
2004).
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CRIMINAL INTENT To be held

liable for intentional felony, the offender
must commit the act prohibited by RPC
with specific criminal intent and general
criminal intent. General criminal intent
(dolo in Article 3 of RPC) is an element of
all crimes but malice is properly applied
only to deliberate acts done on purpose
and with design. Evil intent must unite
with an unlawful act for there to be a
felony. A deliberate and unlawful act gives
rise to a presumption of malice by intent.
On the other hand, specific intent is a
definite and actual purpose to accomplish
some particular thing. In estafa, the
specific intent is to defraud, in homicide
intent to kill, in theft intent to gain
(Recuerdo vs. People, G.R. No. 168217,
June 27, 2006, ). In the US vs. Ah Chong,
the accused was acquitted because of
mistake of fact principle even though the
evidence showed that he attacked the
deceased with intent to kill (United States
vs. Apego, G.R. No. 7929, November 8,
1912; Dissenting opinion of J. Trent),
which was established by the statement of
the accused "If you enter the room I will kill
you." Article 249 (homicide) should be read
in relation to Article 3. The accused was
acquitted not because of the absence of
intent to kill (specific intent) but by reason
of lack of general intent (dolo or malice).
PRESUMED MALICE - The general
criminal intent (malice) is presumed from
the criminal act and in the absence of any
general intent is relied upon as a defense,
such absence must be proved by the
accused (Ah Chong case, the accused was
able to rebut the presumption of general
criminal intent or malice). Generally, a
specific intent is not presumed. Its
existence, as a matter of fact, must be
proved by the State just as any other
essential element. This may be shown,
however, by the nature of the act, the
circumstances under which it was
committed, the means employed and the
motive of the accused (Recuerdo vs.
People, G.R. No. 168217, June 27, 2006, ).
There are other specific intents that are
presumed. If a person died due to violence,
intent to kill is conclusively presumed.
Intent to gain is presumed from taking
property without consent of owner.
MOTIVE
Doubt as to the identity of the
culprit - Motive gains importance only
when the identity of the assailant is in
doubt. As held in a long line of cases, the
prosecution does not need to prove the
motive of the accused when the latter has
been identified as the author of the crime.
The accused was positively identified by
witnesses. Thus, the prosecution did not

have to identify and prove the motive for
the killing. It is a matter of judicial
knowledge that persons have been killed for
no apparent reason at all, and that
friendship or even relationship is no
deterrent to the commission of a crime. The
lack or absence of motive for committing
the crime does not preclude conviction
where there are reliable witnesses who fully
and satisfactorily identified the petitioner as
the perpetrator of the felony (Kummer vs.
People, GR No. 174461, September 11,
2013).
Circumstantial or inconclusive
evidence - Indeed, motive becomes
material
when
the
evidence
is
circumstantial or inconclusive, and there is
some doubt on whether a crime has been
committed or whether the accused has
committed it. The following circumstantial
evidence is sufficient to convict accused: 1.
Accused had motive to kill the deceased
because during the altercation the latter
slapped and hit him with a bamboo,
prompting Romulo to get mad at the
deceased; 2. Accused was chased by the
deceased eastward after the slapping and
hitting incident; 3. Said accused was the
last person seen with the deceased just
before he died; (4) Accused and Antonio
Trinidad surrendered to police authorities
with the samurai; (5) Some of the wounds
inflicted on the deceased were caused by a
bolo or a knife. (Trinidad vs. People, GR No.
192241, June 13, 2012, Justice Peralta).
INDETERMINATE
OFFENSE
DOCTRINE In People vs. Lamahang,
G.R. No. 43530, August 3, 1935, En Banc
- Accused who was caught in the act of
making an opening with an iron bar on the
wall of a store was held guilty of attempted
trespassing and not attempted robbery.
The act of making an opening on the wall
of the store is an overt act of trespassing
since it reveals an evident intention to
enter by means of force said store against
the will of its owner. However, it is not an
overt act of robbery since the intention of
the accused once he succeeded in entering
the store is not determinate; it is subject to
different interpretations. His final objective
could be to rob, to cause physical injury to
its occupants, or to commit any other
offense. In sum, the crime the he intended
to
commit
inside
the
store
is
indeterminate, and thus, an attempt to
commit it is not punishable as attempted
felony. In People vs. Crisostomo, et al.,
G.R. No. L-19034, February 17 1923 The
accused dragged the victim to a rice field.
Fortunately, she was saved from her
captors. It was held that the purpose of
the accused in taking away the offended
party could be to injure or affront her or to
compel her through force to marry one of
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the accused. Thus, the acts are not

constitutive of attempted coercion. Note:
The accused were found guilty of illegal
detention. Taking the victim reveals the
evident intention of the accused to deprive
the liberty of the latter, which is the mens
rea in illegal detention. In U.S. vs. Simeon,
G.R. No. 1603, April 15, 1904 - Raising a
bolo and hacking the victim with it are
acts of execution in homicide or murder.
Such
acts
together
with
other
circumstance may reveal intent to kill.
However, raising bolo alone is susceptible
to different interpretation. The intention of
the offender may either to kill the victim or
merely to threaten him. Since doubt
should be interpreted in favor of the
accused, such act should be considered to
have been made with intent to threaten
the victim. Thus, the crime commit is
merely threat and not attempted homicide;
PROXIMATE CAUSE
Proximate cause is the primary or
moving cause of the death of the victim; it
is the cause, which in the natural and
continuous sequence unbroken with any
efficient intervening cause produces death
and without which the fatal result could
not have happened. It is the cause, which
is the nearest in the order of responsible
causation
(Blacks
Law
Dictionary).
Intervening cause - The direct relation
between the intentional felony and death
may be broken by efficient intervening
cause or an active force which is either a
distinct act or fact absolutely foreign from
the felonious act of the offender. Lightning
that kills the injured victim or tetanus
infecting the victim several days after the
infliction
of
injuries,
or
voluntary
immersing the wounds to aggravate the
crime committed by accused is an
intervening cause. Thus, the accused is
liable for physical injuries because of the
intervening cause rule. On the other hand,
carelessness of the victim, or involuntary
removal of the drainage, lack of proper
treatment is not an intervening cause.
Hence, the accused is liable for the death
because of the proximate cause rule.
If the victim died due to tetanus of
which he was infected when the accused
inflicted injuries upon him, the crime
committed is homicide (People vs. Cornel,
G.R. No. L-204, May 16, 1947). If the
victim died due to tetanus of which he was
infected after the accused inflicted injuries
upon him, the crime committed is physical
injuries. The accused is not liable for
homicide because tetanus is an efficient
intervening cause. Thus, the proximate
cause of the death of the victim is not the
infliction of injuries.
In Villacorta vs.
People, G.R. No. 186412, September 7,

2011, 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 severe tetanus
infection. Since the victim was infected of
severe tetanus, he died the next day. The
incubation period of severe tetanus 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 victim was rushed to the hospital. The
infection of victims stab wound by tetanus
was an efficient intervening cause. The
accused was held liable for physical
injuries.
Proximate cause has been defined
as "that cause, which, in natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury, and without which the result would
not have occurred." Although there was no
direct injury on his vital organs of the
victim, his wounds affected his kidneys,
causing multiple
organ failure
and
eventually his death. Accused is liable for
homicide. Without the stab wounds, the
victim could not have been afflicted with an
infection which later on caused multiple
organ failure that caused his death. The
offender is criminally liable for the death of
the victim if his delictual act caused,
accelerated or contributed to the death of
the victim (Belbis, Jr. vs. People, GR No.
181052, November 14, 2012, Justice
Peralta).
ERROR IN PERSONAE - In case of
error in personae, person is criminally
responsible for committing an intentional
felony although the consequent victim is
different from that intended due to
mistake of identity. Requisites: In order to
make a person criminally liable in case of
error in personae, the following requisites
must be present: (1) Offender committed
an intentional felony; (2) The consequent
victim against whom the felony was
directed is different from that intended due
to mistake of identity. 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
committed crime, whichever is lesser.
ABERRATIO ICTUS - In case of
aberratio ictus, person is criminally
responsible for committing an intentional
felony although the consequent victim is
different from that intended due to
mistake of blow. Requisites: In order to
make a person criminally liable in case of
aberratio ictus, the following requisites
must be present: (1) Offender committed
an intentional felony; (2) The consequent
victim against whom the felony was
directed is different from that intended due
7|P ag e
to mistake of blow. The crime committed

against the intended victim and victim
injured due to aberratio ictus shall be
made a complex crime (compound crime).
The court shall impose the penalty for the
most serious crime in its maximum period.
The circumstance of aberratio ictus
(mistake in the blow) can neither exempt
the accused from criminal responsibility
nor mitigate his criminal liability. Under
Article 4 of RPC, criminal liability is
incurred by any person committing a felony
although the wrongful act done be different
from that which he intended (Matic vs.
People, G.R. No. 180219, November 23,
2011).
PRAETER INTENTIONEM: In case
of
praeter
intentionem,
person
is
criminally responsible for committing an
intentional felony although its wrongful
consequence is graver than that intended.
Requisites: In order to make a person
criminally liable under Article 4 (1) in case
of praeter intentionem, the following
requisites must be present: (1) Offender
committed an intentional felony; (2) The
wrongful act done, which is graver than
that intended, is the direct, natural and
logical
consequence
of
the
felony
committed by the offender. Praeter
intentionem may be appreciated as
mitigating circumstance of lack of intent to
commit so grave a wrong than that
committed.
When death resulted, even if there was
no intent to kill, the crime is homicide, not just
physical injuries, since 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. He
who is the cause of the cause is the cause of
the evil caused (Seguritan vs. People, G.R.
No. 172896, April 19, 2010).
1. Mitigating circumstance - The
mitigating circumstance that the offender
had no intention to commit so grave a wrong
as that committed or praeter intentionem is
obtaining when there is a notable disparity
between the means employed by the
accused to commit a wrong and the
resulting crime committed. The intention of
the accused at the time of the commission
of the crime is manifested from the weapon
used, the mode of attack employed and the
injury sustained by the victim (People vs.
Maglian, G.R. No. 189834, March 30,
2011).The mitigating circumstance of praeter
intentionem cannot be appreciated if the acts
employed by accused were reasonably sufficient
to produce and did actually produce the death
of the victim (People vs. Sales, G.R. No.
177218, October 3, 2011).

2. Evident premeditation- In case
of aberatiu ictus and error in personae, the
SC
did
not
appreciate
evident
premeditation since the victim, who was
actually killed, is not contemplated in the
premeditation of the accused (People vs.
Trinidad, G.R. NO. L-38930, June 28,
1988; People vs. Mabug-at, 51 Phil., 967;
People vs. Trinidad, G.R. No. L-38930,
June
28, 1988). However, praeter
intentionem and evident premeditation can
be independently appreciated. there is no
incompatibility
between
evident
premeditation and no intention to commit
so grave a wrong since the latter is based
on the state of mind of the offender while
the former manner of committing the
crime (Reyes; People vs. Enriquez, 58 Phil.
536).
3. Treachery - If accused employed
means to render the victim defenseless,
treachery shall be appreciated even if the
killing is due to error in personae (People
vs. Del Castillo, Sr., G.R. No. L-32995,
April 30, 1984) or aberratio ictus (People
vs. Mabug-at, G.R. No. 25459, August 10,
1926, En Banc) or with the circumstance
of praeter intentionem (People vs. Cagoco,
G.R. No. 38511, October 6, 1933)
because it is the natural, direct and logical

consequence of an act committed with
criminal intent.
a. With intent to hide the body of
the crime In People vs. Ortega, Jr., G.R.
No. 116736, July 24, 1997 - Ortega
stabbed the victim. Garcia assisted Ortega
in concealing the body of the victim by
throwing the body into the well. Victim
died due to drowning. Issue: Is Garcia
liable for the death of the victim as
principal in homicide even if his intention
was not to kill the victim but merely to
assist Ortega in concealing his dead body
not knowing that the victim was still alive
at that time? In assisting Ortega carry the
body of victim to the well, Garcia was
committing
an
intentional
felony;
concealing the body of the crime to prevent
its discovery makes him liable as an
accessory in homicide. Hence, Garcia
should be held liable for the direct, natural
and logical consequence of his felonious
act of assisting Ortega in hiding the body
of the victim. Since proximate cause of
death of the victim is the felonious and
accessory act of throwing the victim into
the well, Garcia should be held liable for
the death as principal in homicide.
4. Conspiracy - Conspirators, who

conspired to kill a particular parson, are
equally liable for the killing of another
person due to error in personae (People vs.
Pinto, Jr. and Buenaflor, G.R. No. No.
39519, November 21, 1991). However,
conspirator, who never even fired a single
shot and whose only participation was to
drive their getaway vehicle and to lend his
firearm to his back rider so that the latter
could finish off the target victim was not
found accountable for the injury sustained
by the unintended victim was just a starcrossed bystander who was accidentally
hit in the process (aberratio ictus) (People
vs.
Herbias,
G.R.
No.
112716-17,
December 16, 1996; People vs. Flora and
Flora, G.R. No. 125909, June 23, 2000).
b. With intent to threaten In US

vs. Valdez, G.R. No. 16486, March 22,
1921, En Banc - The accused in rage he
moved towards victim with a big knife in
hand, threatening to stab him. Victim
believing himself in great and immediate
peril jumped into the water where he was
drowned. The accused was found guilty of
homicide. The act of threatening to stab
victim constitutes a felony of threat.
Hence, accused is liable for the direct,
natural and logical consequence of his
intentional and felonious act. It was held
that: "If a man creates in another man's
mind 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 injuries which result."
INTENT TO KILL: Intent to kill is

an element of homicide and murder. But
even if offender had no intent to kill, he
would be held just the same liable for
homicide or murder if his felonious act is
the proximate cause of the death of the
latter. Even if there is no intent to kill,
offender is liable for homicide or murder if
the victim died as a result of the felonious
act of the former. The offenders act is
considered felonious if it is accompanied
with criminal or evil intent such as intent
to inflict injury, intent to hide the body of
the crime, intent to threaten victim, intent
to silence the hold-up victim, or intent to
rape. Offender is liable for homicide
d. Intent to inflict injury Intentional infliction of injury resulting in

death of the victim constitutes homicide or
murder. In People vs. Pugay, et al., No
74324, November 17, 1988, the deceased,
a retardate, and the accused Pugay were
friends. Deceased used to run errands for
Pugay and at times they slept together.
During a town fiesta fair was held in the
public plaza. Accused, Pugay and Samson
with several companions, who appeared to
be drunk, made the deceased dance by
tickling him with a piece of wood. Not
content with what they were doing with
the deceased, the accused Pugay suddenly
took a can of gasoline from under the
8|P ag e

engine of the Ferris wheel and poured its
contents on the body of the former. Then,
the accused Samson set victim on fire
making a human torch out of him. Pugay
and Samson were stunned when they
noticed the deceased burning. Crime
committed by Samson: There is no intent
to kill. The act of the Accused was merely
a part of their fun-making that evening.
Accused merely intended to set the
deceased's clothes on fire. His act,
however, does not relieve him of criminal
responsibility. Burning the clothes of the
victim would cause at the very least some
kind of physical injuries on his person, a
felony. Since such felony of physical
injuries resulted into a graver offense, he
must be held responsible therefor. (Note:
The crime is not murder qualified by
means of fire because the fire was not use
to kill but merely to inflict injury).
e. Recklessness Even if there is
no intent to kill and evil intent, offender is
liable for culpable felony if the victim died
as a result of the recklessness of the
former. Crime committed by Pugay: Having
taken the can from under the engine of the
Ferris wheel and holding it before pouring
its contents on the body of the deceased,
this accused knew that the can contained
gasoline. The stinging smell of this
flammable liquid could not have escaped
his notice even before pouring the same.
Clearly, he failed to exercise all the
diligence necessary to avoid every
undesirable consequence arising from any
act that may be committed by his
companions who at the time were making
fun of the deceased. The accused is only
guilty of homicide through reckless
imprudence.
f. Accident - If there is no intent to
kill, evil intent and recklessness on the
part of the accused, he is not liable for his
intentional act, which caused the death of
the victim. In United States vs. Tanedo (15
Phil. Rep., 196), deceased went with the
accused to hunt wild chickens at the
forest. While hunting, the accused came
upon a wild chicken, and, not seeing
deceased about and not knowing or having
any reason to believe that he was in that
vicinity shot the chicken. The bullet that
hit the chicken recoiled and hit the
deceased. It was held that accused is not
criminally liable. Life was taken by
misfortune or accident while in the
performance of a lawful act executed with
due care and without intention of doing
harm. Note: The accused could not have
foreseen that the slug after hitting the
chicken would recoil and hit deceased. The
principle enunciated in Tanedo case will
not apply if the place where the accused
lawfully
discharged
his
firearm
is
9|P ag e
populated. In People vs. Nocum, G.R. No.

L-482, 25 February 1947, En Banc - There
was a fistic fight between two persons.
Desiring to stop the encounter, accused
shouted at the combatants. As these paid
him no attention, he drew a .45 caliber
pistol and shot twice in the air. The bout
continued, however; so he fired another
shot at the ground, but unfortunately the
bullet ricocheted, and hit an innocent bystander, resident of the place. Victim died.
It was held that: The mishap should be
classed as homicide through reckless
imprudence, the slaying having been
unintentional. It is apparent that defendant
willfully discharged his gun-for without
taking the precautions demanded by the
circumstance
that
the
district
was
populated, and the likelihood that his bullet
would glance over the hard pavement of the
Manila thoroughfare. Note: The accused
should have foreseen that the slug after
hitting the pavement would recoil and
might hit somebody.
IMPOSSIBLE CRIME
Offender shall be held liable for
impossible crime if the following requisites
are present: (1) offender performing an act
which would have been an offense against
person or property; (2) offender performed
an act with evil intent; (3) offender did not
commit the offense because of the
impossibility of its accomplishment or
employment of inadequate or ineffectual
means; and (4) offender in performing an
act is not violating another provision of the
law (Luis B. Reyes).
Impossible crime of theft - X,
employee of Mega Inc., received check from
the customer of her employer. Instead of
remitting the check to her employer, X
deposited the check under her account.
However, the drawee bank dishonored the
check because of insufficiency of funds.
What is the crime committed by X? Answer:
The crime committed is impossible crime of
qualified theft. Qualified theft is a crime
against property. The act of depositing the
check is committed with evil intent. The
mere act of unlawfully taking the check
meant for Mega Inc. showed her intent to
gain or be unjustly enriched. There is
factually impossibility to accomplish the
crime of qualified theft since the check is
unfunded. (Jacinto vs. People, G.R. No.
162540, July 13, 2009, Justice Peralta).
Intod principle - In Intod vs. Court
of Appeals, G.R. No. 103119, October 21,
1992 Outside the house of the victim,
accused with intent to kill fired at the
bedroom, where the victim is supposed to
be sleeping. No one was in the room when
the accused fired the shots. No one was hit

by the gun fire. The accused were
convicted of impossible crime. Accused
shoot the place where he thought his
victim would be, although in reality, the
victim was not present in said place and
thus, the accused failed to accomplish
their end due to its factual impossibility.
In the United States, criminal laws are
silent regarding impossible crimes; hence
where the offense sought to be committed
is factually impossible of accomplishment,
the offender shall be liable for attempted
crime. On the other hand, where the
offense
is
legally
impossible
of
accomplishment, the actor cannot be held
liable for any crime. In the Philippines, 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.
Raping a dead person - Prior to RA
8353, rape is a crime against chastity.
Thus, if a person raped a dead person
believing that she was just sleeping,
offender could not be held liable for
impossible crime (J. Ramon Aquino). In
impossible crime the act could have
constituted the crime against person or
property if its accomplishment was not
impossible. Rape is neither a crime against
person nor against property. However, RA
8353 reclassifies rape from crime against
chastity to crime against person. Hence,
an offender for raping a dead person
without knowing that she was already
dead may now be held liable for impossible
crime.
Committing another crime - A
discharged shotgun at B from a distance
of 300 yards; but because of the limited
range of the firepower of the shotgun, it
would be impossible for A to harm B.
A is liable of discharged of firearm and
not impossible crime. Where the offender
unlawful entered the house and took a
watch that turned out to be his own, he is
liable for trespass to dwelling and not
impossible
crime
(Criminal
Law
Conspectus by Justice Florenz Regalado).
If the accused administered abortive drugs
upon his girlfriend whom he believed to be
pregnant, which turned out not to be true,
but the woman became ill for more than
30 days, the accused will be liable for
serious
physical
injuries
and
not
impossible crime of abortion (Criminal Law
Reviewer by Gregorio).
STAGES
10 | P a g e
ATTEMPTED AND FRUSTRATED

STAGES: In attempted felony, the offender
performs directly an overt act, which
consists of one or more acts of execution,
but not enough to consequently produce
the felony. In frustrated felony, the
offenders perform all the acts of execution
that would produce the felony as a matter
of consequence. To determine whether the
felony is at the attempted or frustrated
stage, acts of execution of execution of a
felony must be identified. Example: The
acts of execution that would produce
homicide or murder are infliction of mortal
wounds upon the victim. If the wounds
inflicted upon the victim with intent to kill
are non-mortal, the crime committed is
attempted homicide; if wounds are mortal,
the
crime
committed is
frustrated
homicide.
In attempted felony and frustrated
felony, the external acts performed by the
offender and the intended felony must
have a direct connection; but in an
attempted felony, the offender failed to
perform all the acts of execution; thus his
external acts would not produce the
felony as a consequence; on the other
hand in a frustrated felony, the offender
performed all the acts of execution; thus,
his external acts would produce the
felony as a consequence.
FRUSTRATED
AND
CONSUMMATED - In frustrated and
consummated
felony,
the
accused
performed all acts of execution that would
produce the felony as a consequence. If the
felony is not produced due to external
cause, the crime committed is frustrated
felony; if the felony is produced the crime
committed is consummated.
In frustrated felony, the offender
performed all the acts of execution but the
felony was not produced as a consequence
due to extraneous cause. However, there
are felonies, the commission of which has
no frustrated stage since the performance
of all the acts of execution immediately
consummates the felony. In homicide or
murder case, once the offender inflicted
mortal wound on the victim, all the acts of
execution are considered performed.
However, what consummates homicide or
murder is not the infliction of mortal
wounds but the death of the victim as a
consequence of the mortal wound inflicted.
Thus, if the mortally wounded victim did
not die due to medical intervention,
homicide or murder is only at the
frustrated stage. On the other hand, in
rape once the offender sexually penetrate
the labia of the vagina of the victim, all the
acts
of
execution
are
considered
performed. But since sexual penetration

consummates rape, there are no occasions
where the offender performed all the acts
of execution and yet the felony was not
produced as a consequence. In sum, there
is no such thing as frustrated rape since
the performance of all the acts of execution
immediately consummates rape.
ABSOLUTORY
CAUSE
In
attempted felony and frustrated felony, the
offender failed to accomplish his criminal
objective by reason of extraneous causes;
if the causes are not extraneous, the
accused will be absolved from criminal
liability.
a. Negative Act - In the attempted
stage of the execution of a felony, the
offender must do a negative act to be
exempt
from
criminal
liability
for
attempted felony; since the offender has
not yet performed all the acts of execution
that would produce the felony as a
consequence, he must spontaneously
desist from further doing criminal acts
that will complete all the acts of execution.
Example: A with intent to kill shot B;
B sustained non-mortal wound. To be
exempt
from
criminal
liability
for
attempted homicide or murder, A must
spontaneously desist from further shooting
B in order not to inflict mortal injury
upon him.
b. Positive Act If the offender
performs all the acts of execution, which
would
produce
the
felony
as
a
consequence, offender is not exempted
from liability for frustrated felony even if
he voluntary desisted from further doing
criminal act. Spontaneous desistance is a
defense in attempted felony but not in
frustrated felony. In the frustrated stage of
the execution of a felony, the offender
must do a positive act to be exempt from
criminal liability; since the offender has
performed all the acts of execution that
would
produce
the
felony
as
a
consequence, he must do something to
prevent, or thwart the production of the
felony. Example: A with intent to kill shot
B; B sustained mortal wound. To be
exempt
from
criminal
liability
for
frustrated felony, it is not enough that A
would desist from further shooting B.
The spontaneous desistance is not a valid
defense since A had already inflicted
mortal wound on B that would cause his
death as a consequence. Thus, A must
save the life of B by treating his wound.
If B did not die because As medical
treatment, the latter will not be held liable
for frustrated felony because the homicide
was not produced due to the will of A.
c. Not absolutory cause If the
felony is consummated, offender cannot
11 | P a g e
undo what was done. Offender would not

be absolved from criminal liability even if
he had done something that will mitigate
the effects of the felonious act. Example:
(1) Restitution of funds malversed
immediately and voluntarily made before
the case was instituted is not an
absolutory cause (Navarro vs. Meneses III,
CBD Adm. Case No. 313, January 30,
1998, En Banc). (2) A stole chicken
under the house of B one evening.
Realizing that what he did was wrong, A
returned the chicken to the place under
the house of B. Since the crime of theft
was already consummated, the return of
the stolen property does not relieve A of
criminal responsibility. A had already
performed all the acts of execution, which
produced the crime of theft before he
returned the chicken (Reyes). (3) The fact
that the accused abandoned victim after
six days of captivity does not lessen his
criminal culpability much less exempt him
from criminal liability for the kidnapping
and detention of victim (Baldogo, G.R. No.
128106-07, January 24, 2003, En Banc).
Frustrated homicide or murder
The intent to kill, as an essential element of
homicide at whatever stage, may be before
or simultaneous with the infliction of
injuries. The evidence to prove intent to kill
may consist of, inter alia, the means used;
the nature, location and number of wounds
sustained by the victim; and the conduct of
the malefactors before, at the time of, or
immediately after the killing of the victim
(Escamilla vs. People, GR No. 188551,
February 27, 2013).
X opened the door and while still in
the car drew a gun and shot A once, hitting
him just below the left armpit. X sped away.
The wound sustained by A is not fatal.
What is the crime committed? Answer: X
only shot the victim once and did not hit
any vital part of the latter's body. If he
intended to kill him, X could have shot the
victim multiple times or even ran him over
with the car. Since intent to kill is lacking
but wounds are inflicted upon the victim,
the crime is not attempted murder but
physical injuries only (Pentecostes, Jr. vs.
People, GR No. 167766, April 07, 2010,
Justice Peralta).
X was charged with frustrated
murder for hacking the neck of victim with
the use of a scythe. Invoking the doctrine in
Pentecostes, Jr., X claimed that had he
intended to kill victim, he could have
repeatedly hacked him to ensure the latters
death. Is the argument tenable? Answer:
No. Pentesoste Jr. case is not applicable
since the victim in that case was shot in the
arm, a non-vital part of the body. In this
case, the use of a scythe against victims

neck was determinative of the homicidal
intent of X. A single hacking blow in the
neck could be enough to decapitate a
person and leave him dead. Refraining from
further hacking the victim does not negate
intent to kill. What could have been a fatal
blow was already delivered and there was
no more desistance to speak of (People vs.
Abella, G.R. No. 198400, October 07, 2013).
Using a gun, he shot the victim in
the chest. Despite a bloodied right upper
torso, the latter still managed to run
towards his house to ask for help.
Nonetheless, petitioner continued to shoot
at
him
three
more
times, albeit
unsuccessfully. The wound sustained by
the victim is fatal. The crime committed is
frustrated homicide (Escamilla vs. People,
GR No. 188551, February 27, 2013).
Attempted rape In People vs.
Castillo, GR No. 193666, February 19, 2014
- Accused mashed the breast of his
daughter, kissed and licked her vagina,
inserted his finger in her sex organ, and
rubbed his sex organ against hers but he
did
not
penetrate
her
vagina.
Jurisprudence dictates that in order for
rape to be consummated, there must be
penetration of the penis into the vagina. A
grazing of the surface of the female organ or
touching
the mons
pubis of
the pudendum is not sufficient to constitute
consummated rape. Absent any showing of
the slightest penetration of the female
organ, i.e,
touching
of
either labia of
the pudendum by the penis, there can be no
consummated rape; at most, it can only be
attempted, if not acts of lasciviousness.
This Court is aware of cases where the
conviction of the accused for consummated
rape has been upheld even if the victim
testified that there was no penetration and
the accused simply rubbed his penis in the
victim's vagina. However, in those cases,
there were pieces of evidence such as the
pain felt by the victim, injury to the sex
organ of the victim (e.g., hymenal
laceration), and bleeding of the victim's
genitalia. Here, the victim not only
categorically stated that there was no
penetration, she also stated that she felt no
pain and her vagina did not bleed. Thus,
the appellant cannot be convicted for
qualified rape by sexual intercourse.
However,
his
conviction
cannot
be
downgraded to qualified attempted rape.
The prosecution has alleged and proved
that there was qualified rape by sexual
assault when the accused-appellant kissed
and licked his daughter's vagina and
inserted his finger in her sex organ.
In People vs. Castillo, GR No.
193666, February 19, 2014 the accused
commenced the act of having sexual
12 | P a g e
intercourse with his daughter but failed to

make a penetration into her sexual organ
not because of his spontaneous desistance
but because of the relatively small size of
her orifice. He is guilty of attempted rape.
COMPLEX CRIME
Killing persons and injuring two
more by treacherously detonating a hand
grenade in a dancing place constitutes the
complex crime of multiple murders with
double attempted murder. Single act of
detonating an explosive device may
quantitatively constitute a cluster of several
separate and distinct offenses, yet these
component criminal offenses should be
considered only as a single crime in law on
which a single penalty is imposed because
the offender was impelled by a single
criminal impulse which shows his lesser
degree of perversity. Even though the other
victim did not suffer mortal wounds, the
crime
committed
is
not
physical
injuries, because accused was motivated by
the same intent to kill when he detonated
the explosive device inside the dancing
place (People vs. Barde, G.R. No.
183094, September 22, 2010).
RECOMMENDED EXECUTIVE CLEMENCY
Accused was convicted of crime RA
No. 8282 for his failure to remit SSS
contributions of his employees and was
sentenced to suffer up to 20 years of
reclusion temporal. The penalty is excessive
since he already paid his delinquent
contribution. Under Article 5 of the Revised
Penal Code, the courts are bound to apply
the law as it is and impose the proper
penalty, no matter how harsh it might be.
The same provision, however, gives the
Court the discretion to recommend to the
President actions it deems appropriate but
are beyond its power when it considers the
penalty imposed as excessive. Although an
accused is convicted under a special penal
law, the Court is not precluded from giving
the
Revised Penal
Code
suppletory
application in light of Article 10 of the same
Code (Mendoza vs. People, G.R. No.
183891, October 19, 2011).
CONSPIRACY
IMPLIED CONSPIRACY - In People
vs. Dollendo, G.R. No. 181701, January 18,
2012 -The evidence of a chain of
circumstances, to wit: that appellant went
inside the house of Romines to ascertain
that the victim was there; that he fetched
Dollendo to bring him to Ruiz; that he gave
the dipang to Dollendo to commit the crime;
and that they both fled after the stabbing,
taken collectively, shows a community of
criminal design to kill the victim. Evidently,

there was conspiracy in the commission of
the crime.
COLLECTIVE RESPONSIBILITY - It
is immaterial whether appellant acted as a
principal or as an accomplice because the
conspiracy and his participation therein
have been established. In conspiracy, the
act of one is the act of all and the
conspirators shall be held equally liable for
the crime (People vs. Siongco, G.R. No.
186472, July 5, 2010).
DISSOCIATION - To exempt himself
from criminal liability, a conspirator must
have performed an overt act to dissociate or
detach himself from the conspiracy to
commit the felony and prevent the
commission thereof (People vs. Ebet, G.R.
No. 181635 November 15, 2010).
MASTERMIND - To be held liable as
conspirator, it must also be shown that the
accused performed an overt act in
furtherance of the conspiracy except in the
case of the mastermind of a crime (People vs.
Vera, GR No. 128966, August 18, 1999).
One who plans the commission of a crime is
liable as conspirator and principal by
inducement (People vs. Comiling, G.R. No.
140405, March
4,
2004,
En
banc).Notwithstanding, the fact that one
was not at the crime scene, evidence proved
that he was the mastermind of the criminal
act or the principal by inducement. What is
important is that inducement was the
determining cause of the commission of the
crime. The command or advice made by
principal by inducement was of such
nature that, without it, the crime would not
have materialized (People vs. Janjalani,
G.R. No. 188314, January 10, 2011).
PRESENCE - Accused, unarmed,
appeared in the company of his employer,
and another person. His employer shot and
killedthe victim. Accused did nothing to
prevent the killing. Accused fled together
with his employer and other person.The
fact that accused appeared together with
employer and another and fled with them
proves a certain degree of participation and
cooperation in the execution of the
crime. However, there is doubt as to
whether accused acted as a principal or
just a mere accomplice. Such doubt should
be resolved in favor of the milder form of
criminal liabilitythat of a mere accomplice
(People vs. Tomas, G.R. No. 192251,
February 16, 2011). If the accused is armed
at the time, he could be held liable as
principal on the
basis of implied
conspiracy. The fact that the companion of
the criminal actor is armed may mean that
the former is supplying moral assistance to
the latter. The armed presence of
conspiratorial companion may prove a
13 | P a g e
sense of security and encouragement on

the part of the material executor or may
serve as deterrence against possible
defender or rescuer (Galgo, G.R. No.
133887, May 28, 2002, En Banc).
SPECIAL LAW - B.P. Blg. 22 does
not expressly proscribe the supplementary
application of the provisions RPC including
the rule on conspiracy. Hence, such rule
may be applied supplementarily. Thus, a
non-issuer of bum check can be held liable
for violation of BP Blg. 22 on the basis of
conspiracy. (Ladonga vs. People, G.R. No.
141066, February 17, 2005). The principle
of conspiracy may be applied to RA No.
9262. Thus, a person (such as mother-inlaw), 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)
Anti-graft law - May a private
person be indicted for conspiracy in
violating Section 3(g) of R.A. 3019 even if
the public officer, with whom he was
alleged to have conspired, has died prior to
the filing of the Information? Answer: Yes.
The death of the public officer does not
mean that the allegation of conspiracy
between him and private individual can no
longer be proved or that their alleged
conspiracy is already expunged. The only
thing extinguished by the death of the
public officer is his criminal liability. His
death did not extinguish the crime nor did
it remove the basis of the charge of
conspiracy between him and private
individual (People vs. Go, GR NO. 168539,
March 25, 2014, en banc).
Robbery with rape When a
homicide takes place by reason of 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
they actually participated in the killing,
unless there is proof that there was an
endeavor to prevent the killing. The records
are bereft of any evidence to prove, or even
remotely suggest, that appellant attempted
to prevent the killing. Therefore, the basic
principle in conspiracy that the "act of one
is the act of all," applies in this case (People
vs. Ebet, GR No. 181635, November 15,
2010, Justice Peralta; People vs. De Leon,
GR No. 179943, June 26, 2009, Justice
Peralta; People vs. Diu, GR No. 201449,
April 03, 2013)
If a robber tries to prevent the
commission
of
homicide
after
the
commission of the robbery, he is guilty only
of robbery and not of robbery with
homicide. All those who conspire to commit
robbery with homicide are guilty as

principals of such crime, although not all
profited and gained from the robbery. One
who joins a criminal conspiracy adopts the
criminal designs of his co-conspirators and
can no longer repudiate the conspiracy
once it has materialized (People vs. Ebet,
GR No. 181635, November 15, 2010,
Justice Peralta; People vs. Diu, GR No.
201449, April 03, 2013).
Kidnapping with rape - A, B and C
kidnapped X from her house, and then
detained her in a safe house for purpose of
extorting ransom. While C went to Jolibee
to buy food, A raped X in the presence of B.
What is the crime committed by A, B and
C? Answer: A is liable for special complex
crime of kidnapping and serious illegal
detention with rape. Since X is a female,
taking her away from her house against her
will and holding her as captive constitute
kidnapping and serious illegal detention.
Raping the kidnapped victim is a qualifying
circumstance. These two crimes should be
integrated together to form a composite
crime where the law prescribes a single
penalty.
B is also liable for special complex
crime of kidnapping and serious illegal
detention with rape. Since conspiracy is
established between A and B in the
commission of kidnapping, the latter is
responsible for the rape committed by
former since there is no showing that B
endeavored to prevent A from raping X
(People vs. Anticamaray, GR No. 178771,
June 08, 2011, Justice Peralta).
C is only liable for kidnapping and
serious illegal detention. Since there is no
evidence that he is aware of the commission
of rape, he could not have prevented A from
raping the victim. Hence, he is not
responsible for the rape (People vs.
Anticamaray, supra, Justice Peralta).
(Ong vs. People, GR No. 190475, April 10,

2013).
The essential elements of the crime
of fencing under PD No. 1612 are as
follows: (1) A crime of robbery or theft has
been committed; (2) The accused, who is
not a principal or accomplice in the
commission of the crime of robbery or theft
(or carnapping but not malversation or
estafa), buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in
any article, item, object or anything of
value, which has been derived from the
proceeds of the said crime; (3) The accused
knows or should have known that the said
article, item, object or anything of value
has been derived from the proceeds of the
crime of robbery or theft; and (4) There is
on the part of the accused, intent to gain
for himself or for another (Francisco vs.
People, G.R. No. 146584, July 12, 2004).
a. Proving robbery or theft
Commission of robbery or theft by the
principal as an element of fencing should
be proven beyond reasonable doubt to
convict the fencer. One may not be
convicted of the crime of fencing if the
complainant did not lodge a criminal
complaint against the principal in the
crime of theft. This will create doubt if
theft was really committed (Tan vs. People,
G.R. No. 134298, August 26, 1999) Failure
to show finality of conviction of theft
against the principal is fatal to prosecution
for fencing. In Francisco vs. People, G.R.
No. 146584, July 12, 2004, - The decision
of the trial court convicting the principal of
theft does not constitute proof against the
accused for the crime of fencing, that the
principal had, indeed, stolen the jewelry.
There is no showing that the said decision
was already final and executory when the
trial court rendered its decision in the
fencing case. Accused was acquitted.
FENCING
The essential elements of the crime
of fencing are as follows: (1) a crime of
robbery or theft has been committed; (2) the
accused, who is not a principal or on
accomplice in the commission of the crime
of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells
or disposes, or buys and sells, or in any
manner deals in any article, item, object or
anything of value, which has been derived
from the proceeds of the crime of robbery or
theft; (3) the accused knew or should have
known that the said article, item, object or
anything of value has been derived from the
proceeds of the crime of robbery or theft;
and (4) there is, on the part of one accused,
intent to gain for oneself or for another
14 | P a g e
b. Knowledge - In Dimat vs. People,

G.R. No. 181184, January 25, 2012 But
Presidential Decree 1612 is a special law
and, therefore, its violation is regarded
as malum prohibitum, requiring no proof
of criminal
intent.
Of
course,
the
prosecution must still prove that accused
knew or should have known that the
Nissan Safari he acquired and later sold to
complainant was derived from theft or
robbery and that he intended to obtain
some gain out of his acts. Accused knew
that the Nissan Safari he bought was not
properly
documented. He
said
that
Tolentino showed him its old certificate of
registration and official receipt. But this
certainly could not be true because, the
vehicle having been carnapped, Tolentino
had no documents to show. That Tolentino

was unable to make good on his promise to
produce new documents undoubtedly
confirmed to accused that the Nissan Safari
came from an illicit source. Still, accused
sold the same to complainant who
apparently made no effort to check the
papers
covering
her
purchase. That
complainant might herself be liable for
fencing is of no moment since she did not
stand accused in the case.
Accused was in the business of buy
and sell of tires for the past 24 years,] ought
to have known the ordinary course of
business in purchasing from an unknown
seller. Admittedly, Go approached accused
and offered to sell the 13 tires (which were
stolen) and he did not even ask for proof of
ownership
of
the
tires. The
entire
transaction, from the proposal to buy until
the delivery of tires happened in just one
day. His experience from the business
should have given him doubt as to the
legitimate
ownership
of
the
tires
considering that it was his first time to
transact with Go and the manner it was
sold is as if Go was just peddling the 13
tires in the streets. Accused was convicted
of fencing (Ong vs. People, GR No. 190475,
April 10, 2013).
Accused knew the requirement of
the law in selling second hand tires.
Section 6 of P.D. 1612 requires stores,
establishments or entities dealing in the
buying and selling of any good, article,
item, object or anything else of value
obtained from an unlicensed dealer or
supplier thereof to secure the necessary
clearance or permit from the station
commander of the Integrated National
Police in the town or city where that store,
establishment or entity is located before
offering the item for sale to the public. In
fact, accused has practiced the procedure
of obtaining clearances from the police
station for some used tires he wanted to
resell but, in this particular transaction, he
was remiss in his duty as a diligent
businessman who should have exercised
prudence (Ong vs. People, GR No. 190475,
April 10, 2013).
The issuance of a sales invoice or
receipt is proof of a legitimate transaction
and may be raised as a defense in the
charge of fencing; however, that defense is
disputable. In this case, the validity of the
issuance of the receipt was disputed, and
the prosecution was able to prove that Gold
Link
and
its
address
were
fictitious. Accused failed to overcome the
evidence presented by the prosecution and
to prove the legitimacy of the transaction.
Thus, he was unable to rebut the prima
facie presumption under Section 5 of P.D.
15 | P a g e
1612 (Ong vs. People, GR No. 190475, April

10, 2013).
c. Presumption: Section 6 of PD No.
1612 provides: Mere possession of any
good, article, item, object, or anything of
value which has been the subject of
robbery or thievery shall be prima facie
evidence of fencing.Possession is not
limited to actual manual control of the
offender over the stolen property but
extends to power and dominion over it.
Circumstances normally exist to
forewarn, for instance, a reasonably vigilant
buyer that the object of the sale may have
been derived from the proceeds of robbery
or theft. Such circumstances include the
time and place of the sale, both of which
may not be in accord with the usual
practices of commerce. The nature and
condition of the goods sold, and the fact
that the seller is not regularly engaged in
the business of selling goods may likewise
suggest the illegality of their source, and
therefore should caution the buyer. This
justifies the presumption found in Section 5
of P.D. No. 1612 that mere possession of
any goods, object or anything of value which
has been the subject of robbery or thievery
shall be prima facie evidence of fencing.
This presumption is reasonable for no other
natural or logical inference can arise from
the established fact of possession of the
proceeds of the crime of robbery or theft
(Ong vs. People, GR No. 190475, April 10,
2013).
The accessory in theft should
materially benefit from it. Riding in a
stolen vehicle is not profiting within the
contemplation of Article 17 of the Revised
Penal Code since it does not improve his
economic position. Profiting is not
synonymous to intent to gain as an
element of theft (Gregorio). However, in
violation of PD No. 1612, use of stolen
property gives rise to the presumption of
fencing. Hence, the user may be held liable
for fencing even though he did not
materially benefit from crime of theft.
The
presumption of theft is
disputable. The presumption of fencing
may be overcome by showing proof that
accused bought the item from a licensed
dealer of second-hand items (HizonPamintuan vs. People, G.R. No. 11414, July
11, 1994) or by showing official receipts
covering the purchases of property, which
is the subject of fencing (D. M Consunji,
Inc. vs. Esguerra, G.R. No. 118590, July
30, 1996).
d. Recently stolen property If
suspect is found in possession of recently
stolen property, he should be charged as

principal in the crime of theft or robbery.
Under Section 3 (j), Rule 131, a person
found in possession of a thing taken in the
doing of recently wrongful act is the taker
and the doer of the whole act. Settled is
the rule that unexplained possession of
recently stolen property is prima facie
evidence of guilt of the crime of theft ( US
vs. Ungal, 37 Phil., 835). If the subject
property is not recently stolen, the
presumption under Section 3 (j), Rule 131
will not arise. However, the possessor is
still presumed to have violated PD No.
1612 even if the property being possessed
was not recently stolen. Under the law,
mere possession of stolen property gives
rise to the presumption of fencing.
OBSTRUCTION OF JUSTICE
Obstruction of justice under PD No.
1829 is committed by any person who
knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of
suspects and the investigation and
prosecution of criminal cases by (1)
altering,
destroying,
suppressing
or
concealing any paper, record, document,
or object, with intent to impair its verity,
authenticity, legibility, availability, or
admissibility
as
evidence
in
any
investigation of or official proceedings in,
criminal cases, or to be used in the
investigation of, or official proceedings in,
criminal cases; (2) harboring or concealing,
or facilitating the escape of, any person he
knows, or has reasonable ground to
believe or suspect, has committed any
offense under existing penal laws in order
to prevent his arrest prosecution and
conviction;
a. Commission of crime, not an
element - To be held liable as accessory
under the Revised Penal Code, it is
required that the crime was committed by
the principal. To be held liable for
obstruction of justice, it is not necessary
that the crime was committed by a
criminal suspect. Example: A committed
suicide. To make it appear that B
murdered A, C placed the gun used in
perpetrating suicide inside the bag of B.
C committed the crime of obstruction of
justice
for
having
obstructed
the
investigation of a criminal case involving
the death of A. C cannot be held liable
as accessory because murder was not
really committed.
b. Knowledge - An accessory
under Revised Penal Code must have
knowledge of the commission of the crime
by the principal. To commit obstruction of
justice, what is important is not knowledge
of the commission of a crime but
awareness of an ongoing or impending
16 | P a g e
investigation and prosecution of a criminal

case. In fact, even though the suspect did
not commit a crime, obstruction of justice
is committed if he knowingly obstructs,
impedes,
or
frustrates
the
said
investigation and prosecution.
c.
Obstructing
criminal
investigation or prosecution - Public
officer, who destroyed dangerous drugs as
evidence for monetary consideration, is
liable for obstruction of justice in addition
to graft and corruption and direct bribery
(2005 Bar Exam)
If a respondent in a preliminary
investigation altered the allegation in the
complaint-affidavit as to the date of
criminal incident to make it appear that
the crime, with which he was charged, had
prescribed, the alteration is constitutive of
the crime of falsification of document
under Article 172 of the Revised Penal
Code and obstruction of justice under PD
No. 1829.
d. Principal of the crime - A and
B killed X. After the slaughter, A and
B burned the dead body of X in the
forest to prevent its discovery. Can A and
B be charged as accessory of the crime to
murder or obstruction of justice? A and
B are principals by direct participation in
the crime of murder qualified by
employment of means to afford impunity.
Hence, they cannot be charged as
accessories. Under the Revised Penal
Code,
accessories
must
not
have
participated in the commission of the
crime as principals. However, in addition
to murder, they can be charged with the
crime of obstruction of justice for
destroying an object to impair its
availability as evidence in a case. Under
PD No. 1829, it is not required that the
offenders must not have participated as
principals.
e. Suspicion - An accessory under
Article 19 (3) of the Revised Penal Code
must have knowledge of the commission of
the crime by the principal. Entertaining
suspicion is not itself proof of knowledge
that a crime has been committed.
Knowledge and suspicion are not
synonymous. The word suspicion is
defined as being the imagination of the
existence of something without proof, or
upon very slight evidence or upon no
evidence at all (Reyes). On the other hand,
the offender may violate Section 1 (c) of PD
No. 1829 even though he has no
knowledge of the commission of the crime
as long as he has reasonable ground to
believe or suspects that the person he
assisted has committed a crime. In some,

mere suspicion is enough to establish the
second element of the offense.
d. Preventing an illegal arrest
Harboring or concealing a criminal suspect
in order to prevent a lawful warrantless
arrest or the implementation of a warrant
of arrest constitutes obstruction of justice.
However, harboring or concealing a
criminal suspect to prevent an illegal arrest
is not a crime. The term arrest in Section
1 (c) of PD No. 1829 contemplates a lawful
arrest (Posadas vs. the Hon. Ombudsman,
G.R. No. 131492, September 29, 2000)
e. Accessory To make a person
liable as accessory under the Revised
Penal Code, it is required that he is a
public officer, who acted with abuse of his
public functions, or that the person
assisted is guilty as principal in treason,
parricide, murder, or an attempt to take
the life of the Chief Executive or a
principal, who is known to be habitually
guilty of some other crime. This
requirement is not applicable if the
accused is charged with obstruction of
justice.
f. No exempting circumstance Accessories are exempt from criminal
liability if the principal merely committed a
light felony (Article 16 of the Revised Penal
Code). Accessories of the second or third
kind are exempt also from criminal
responsibility if they are related to the
criminal actor (Article 20 of the Code).
However, if the accessories of the crime
were charged with the crime of obstruction
of justice, they cannot claim criminal
exemption under the Revised Penal Code.
PD No. 1829 has no provision on criminal
exemption.
AGGRAVATING CIRCUMSTANCES
Generic aggravating circumstances
has the effect of increasing the penalty for
the crime to its maximum period, but it
cannot increase the same to the next higher
degree. It must always be alleged and
charged in the information, and must be
proven during the trial in order to be
appreciated. Moreover, it can be offset by
an ordinary mitigating circumstance (People
vs. De Leon, GR No. 179943, June 26,
2009, Justice Peralta).
Section 8, Rule 110 of the Rules of
Court has expressly required that qualifying
and
aggravating
circumstances
be
specifically alleged in the information. Due
to such requirement being pro reo, the
Court has authorized its retroactive
application in favor of even those charged
with felonies committed prior to December
1, 2000, which is the date of the effectivity
17 | P a g e
of the 2000 revision of the Rules of Criminal

Procedure that embodied the requirement
(People vs. Dadulla, G. R. No. 172321,
February 9, 2011).
TAKING
ADVANTAGE
OF
POSITION - The mere use of service firearm
is not enough to constitute taking
advantage of public position. Fact that
accused made use of firearms which they
were authorized to carry or possess by
reason of their positions, could not supply
the required connection between the office
and the crime.The crime in question, for
example, could have been committed by the
defendants in the same or like manner and
with the same case if they had been private
individuals and fired with unlicensed
weapons (People vs. Mandolado, G.R. No. L51304, June 28, 1983; People vs. Joyno,
G.R. No. 123982, March 15, 1999, En
Banc; People vs. Villa, Jr., G.R. No. 129899,
April 27, 2000; People vs. Villamor, G.R.
Nos. 140407-08 and 141908-09, January
15, 2002, En Banc; and People vs.
Fallorina, G.R. No. 137347, March 4, 2004,
En Banc).
IGNONIMY - After killing the victim,
the accused severed his sexual organ.
Should ignominy be appreciated? No. For
ignominy to be appreciated, it is required
that the offense be committed in a manner
that tends to make its effect more
humiliating, thus adding to the victims
moral suffering. Where the victim was
already dead when his body or a part
thereof was dismembered, ignominy cannot
be taken against the accused (People vs.
Cachola, G.R. Nos. 148712-15, January 21,
2004, )`
TREACHERY
To
appreciate
treachery, two (2) conditions must be
present, namely, (a) the employment of
means of execution that gives the person
attacked no opportunity to defend himself
or to retaliate, and (b) the means of
execution were deliberately or consciously
adopted. Treachery is not present because
accused chased victim before the latter was
hacked; hence, it cannot be concluded that
accused employed means of execution
which gives victim no opportunity to
retaliate or escape. Moreover, the location
of the hack wound on the left side of the
face of the victim will also show that a
frontal attack was made (People vs. Duavis,
GR No. 190861, December 07, 2011,
Justice Peralta).
The fatal stabbing of Rosalino by
Ramon was immediately preceded by two
altercations between Ramon and Virgilio,
on one hand, and Rosalino, on the other.
The first altercation occurred right after the
near-collision of the tricycles, while the

other happened shortly after Ramon and
Virgilio
had
blocked
Rosalinos
tricycle. During the second altercation,
Rosalino stood face to face with Ramon and
Virgilio. It was then when Ramon stabbed
the victim twice, the sequential method of
attack being borne out in the necropsy
report showing that Rosalino had sustained
two fatal stab wounds in the chest and
abdomen. Under
the
circumstances,
Rosalino was rendered completely aware of
the imminent danger to himself from
Ramon and Virgilio, rendering their assault
far from sudden and unexpected as to put
Rosalino off his guard against any deadly
assault. To stress, treachery cannot be
appreciated if the victim was forewarned of
an impending danger and could have
foreseen the aggression of the accused
(People vs. Placer, GR No. 181753, October
09, 2013).
Treachery
is
not
a
qualifying
circumstance but a generic aggravating
circumstance to robbery with homicide
although said crime is classified as a crime
against property and a single and indivisible
crime (People vs. Baron, G.R. No.
188601, June 29, 2010).
As the killing, in this case, is
perpetrated with both treachery and by
means of explosives, the latter shall be
considered
as
a
qualifying
circumstance since it is the principal mode
of attack. Reason dictates that this
attendant circumstance should qualify the
offense while treachery will be considered
merely
as
a
generic
aggravating
circumstance (People vs. Barde G.R. No.
183094, September 22, 2010).
EMPLOMENT OF MEANS TO
WEAKEN DEFENSE - If the employment of
means to weaken the defense of the victim
renders the victim defenseless, treachery
absorbs circumstance of employing means
to weaken defense (People vs. Tunhawan,
G.R. NO. L-81470, October 27, 1988).
DISGUISE - If the accused covers
his face with a handkerchief when he
treacherously killed the victim, the crime
committed is murder qualified by treachery
and aggravated by disguise (People vs.
Piring, G.R. No. 45053, October 19, 1936).
If the accused covers his face with a
handkerchief when he killed the victim, the
crime committed is murder qualified by
employment of means of affords impunity.
If the accused treacherously stabbed
the victim, and the crime committed is
murder
qualified by
treachery
and
aggravated by disguise. If the accused
covers his face with a handkerchief when
he killed the victim, the crime committed is
18 | P a g e
murder qualified by employment of means

of affords impunity.
NIGHTTIME - Thus, treachery
absorbs nighttime where had it not been at
night the offender, with his cohorts, would
not have been able to approach the
deceased without the latter's becoming
aware of his presence and guessing his
intention; If they were able to catch victim
completely unawares, it was due to the
darkness of the night which covered them
(People vs. Gumarang , GR N. 46413,
October 6, 1939).
As a general rule, nighttime is
aggravating because the darkness of the
night facilitated the commission of the
crime or insured impunity. Thus, nighttime
cannot aggravate the crime if it is
committed in a lighted place although at
the wee hours of the night (People vs.
Clario, G.R. NO. 134634, July 31, 2001).
The darkness of the night and not nighttime
per se is important in appreciating it as
modifying
circumstance
(People
vs.
Banhaon,
G.R. No. 131117, June 15,
2004). But if the offender purposely
selected the wee hour of the night when
neighbors and occupants of the house
including the victim were sleeping to
facilitate the commission of the crime or to
afford impunity, nighttime is appreciable
even if the place of commission is lighted.
(People vs. Demate, G.R. No. 132310,
January 20, 2004, En Banc).While accused
were already outside the victims house at
around 11:00 p.m., they purposely waited
until 2:00 a.m. before breaking into the
residence so as not to call the attention of
the victims, household members and/or
their neighbors. Taking advantage of the
fact that the victim and household
members were asleep, accused entered the
well-lighted bedroom and killed the victim.
Nighttime should be appreciated since
accused took advantage of the silence of the
night (People vs. Ventura and Ventura, G.R.
No. 148145-46, July 5, 2004, Per Curiam).
ABUSE OF SUEPRIOR STRENGHT
The fact that there were two persons
who attacked the victim does not per se
establish that the crime was committed with
abuse of superior strength, there being no proof
of the relative strength of the aggressors and
the victim. The evidence must establish that
the assailants purposely sought the advantage,
or that they had the deliberate intent to use
this advantage (People vs. Beduya, G.R. No.
175315, August 9, 2010). Abuse of superior
strength is an aggravating circumstance if
the accused purposely uses excessive force
out of proportion to the means of defense
available to the person attacked, or if there
is notorious inequality of forces between the
victim and aggressor, and the latter takes

advantage of superior strength (People vs.
Del Castillo, G.R. No. 169084, January 18,
2012).The victim need not be completely
defenseless in order for the said aggravating
circumstance to be appreciated (People vs.
Paling, G.R. No. 185390 March 16, 2011)If
the victim is completely defenseless,
treachery should be appreciated. When the
circumstance of abuse of superior strength
concurs with treachery, the former is
absorbed in the latter (People vs. Rebucan,
G.R. No. 182551, July 27, 2011).
As regards the abuse of superior
strength as aggravating circumstance, what
should be considered is not that there were
three, four or more assailants as against
one victim, but whether the aggressors took
advantage of their combined strength in
order to consummate the offense. To take
advantage of superior strength is to use
excessive force out of proportion to the
means available to the person attacked to
defend himself, and in order to be
appreciated it must be clearly shown that
there was deliberate intent on the part of
the malefactors to take advantage thereof
(People vs. Del Prado, GR No. 187074,
October 13, 2009, Justice Peralta).
Del Prado, together with his coaccused, abused their superior strength in
killing victim. Victim was unarmed and
defenseless at the time Del Prado and his
co-accused bludgeoned his head and body
with a baseball bat, hit him with a stone,
and stabbed him twice. The number of
assailants and the nature of the weapons
used against victim show a notorious
inequality of force between victim and his
aggressors. The actuations of Del Prado and
his
co-accused
in
inflicting
injury
successively furthermore show that they
purposely used excessive force to ensure
the killing of victim (People vs. Del Prado,
GR No. 187074, October 13, 2009, Justice
Peralta).
The victim, who was 16 year old,
unarmed and pregnant, was stabbed by the
appellant with a sharp bladed and pointed
instrument while she was lying on her
back. The Court has consistently held that
an attack made by a man with a deadly
weapon upon an unarmed and defenseless
woman constitutes the circumstance of
abuse of that superiority which his sex and
the weapon used in the act afforded him,
and from which the woman was unable to
defend herself. The crime committed is
complex
crime
of
murder
with
unintentional abortion (People vs. Salcedo,
GR No. 178272, March 14, 2011, Justice
Peralta).
EVIDENT PREMEDITATION - In
order for evident premeditation to be
19 | P a g e
appreciated, the following [requisites must

concur]: (1) the time when accused
[decided] to commit the crime; (2) an overt
act manifestly indicating that [he] has clung
to his determination; and, (3) sufficient
lapse of time between [such a determination
and the actual] execution to allow the
accused time
to reflect upon the
consequences of his act (People vs. SPO1
Alawig, GR No. 187731, September 18,
2013). The essence of evident premeditation
is that the execution of the criminal act
must be preceded by cool thought and
reflection upon the resolution to carry out
the criminal intent during a space of time
sufficient to arrive at a calm judgment
(People vs. Alinao, GR No. 191256,
September 18, 2013).
Accused, in razing victims house in
order to drive him out and shooting him the
moment he appears at his front door,
clearly had a previously and carefully
crafted plan to kill his victim. The time it
took accused and his son to device their
plan, plot where the gasoline should be
poured, and procure the gasoline and the
firearms, as well as the time it took to go to
victims house, and even the time when
they waited for victim to come out of the
house, all afforded accused sufficient
opportunity
to
reflect
upon
the
consequences of his act to kill his brotherin-law and his determination to commit the
cold-blooded deed from the time of its
conception until it was carried out (People
vs. Alinao, GR No. 191256, September 18,
2013).
Evidence shows that Luague had a
grudge against Porferia, and that their last
confrontation occurred a day before the
shooting. The involvement of appellants
Dearo and Toledo was shown by the
testimony of Jose Santiago that the two
were with Luague three days before the
shooting. Appellant Dearo then vowed to
kill Emeterio. These uncontroverted pieces
of evidence clearly showed the instances
when appellants resolved to commit the
felony. The space of time from the
resolution to the actual execution allowed
them to contemplate on the matter, or
maybe
even
reconsider.
Evident
premeditation attended the killing of the
victim (People vs. Dearo, et.al., GR No.
190862, October 09, 2013).
The
essence
of
evident
premeditation is that the execution of the
criminal act must be preceded by cool
thought and reflection upon the resolution
to carry out the criminal intent during a
space of time sufficient to arrive at a calm
judgment.[ For it to be appreciated, the
following
must
be
proven
beyond
reasonable doubt: (1) the time when the

accused determined to commit the crime;
(2) an act manifestly indicating that the
accused clung to his determination; and (3)
sufficient lapse of time between such
determination and execution to allow him
to reflect upon the circumstances of his act.
The altercation between accused and victim
took place at around 3:00 p.m. and the
hacking incident took place at around 5:30
p.m. of the same day. The lapse of time
between the decision and the execution is
not sufficient to allow appellant to fully
reflect upon the consequences of his act
and to effectively and efficiently prepare
and plan his actions prior to the
commission of the crime (People vs. Duavis,
GR No. 190861, December 07, 2011,
Justice Peralta).
DISREGARD OF SEX: Robbery with
homicide is essentially a felony against
property. The aggravating circumstance of
disregard of the victims age is applied only
to crimes against persons and honor.
Moreover, the bare fact that the victim is a
woman does not per se constitute disregard
of sex. For this circumstance to be properly
considered, the prosecution must adduce
evidence that in the commission of the
crime, the accused had particularly
intended to insult or commit disrespect to
the sex of the victim. In this case, the
appellant killed the victim because the
latter started to shout. There was no intent
to insult nor commit disrespect to the
victim on account of the latters sex (People
vs. Reyes, G.R. No. 153119, April 13, 2004.
The circumstances of disregard of
sex, age or rank should be taken singly or
together. But the circumstance of dwelling
should be considered independently from
the circumstance of disregard of age, sex
and rank since these circumstances
signify different concepts. In the latter, the
disrespect shown by offender pertains to
the person of the offended due to her rank,
age and sex. In the former, the disrespect
pertains to the dwelling of the offended
party due to the sanctity of privacy which
the law accords it. In People vs. Puno, G.R.
No. L-33211, June 29, 1981, En Banc Disregard of rank and dwelling were
appreciated independently.
accomplices who take part in minor

capacity, directly or indirectly (People vs.
Lozano, G.R. Nos. 137370-71, September
29, 2003, En Banc) and (2) that the
accused availed himself of their aid or relied
upon them when the crime was committed.
Thus, this circumstance should not be
appreciated were armed men acted in
concert to ensure the commission of the
crime (People vs. Carino, G.R. No. 131117,
June 15, 2004).
In aid of armed men, the men act
as accomplices only. They must not be
acting in the commission of the crime
under the same purpose as the principal
accused, otherwise they are to be regarded
as co-principals or co-conspirators (People
vs. Enoja, GR No. 204894, March 10,
2014).
CRUELTY: The crime is not
aggravated by cruelty simply because the
victim sustained ten stab wounds, three of
which were fatal. For cruelty to be
considered as an aggravating circumstance
there must be proof that, in inflicting
several stab wounds on the victim, the
perpetrator intended to exacerbate the pain
and suffering of the victim. The number of
wounds inflicted on the victim is not proof
of cruelty (Simangan vs. People, G.R. No.
157984. July 8, 2004, ).
The
crime
was
qualified
by
treachery. The victim, who was barely
thirteen years old, was helpless and unable
to defend himself. His feet and hands were
tied while the appellant mauled and kicked
him, and hit him with a piece of wood. The
appellant was so depraved that he even
electrocuted the victim by placing a live
wire on the latters palms and burying him
alive. This is borne by the autopsy report of
Dr. Suzette Yalung, which indicates that
the victim died because of cardiac arrest
due to asphyxiation. By his detestable
acts, the appellant intended to exacerbate
the suffering of the victim. Hence, cruelty
was attendant to the commission of the
crime. However, cruelty is absorbed by
treachery (People vs. Chua, G.R. No.
149538, July 26, 2004, ).
MITIGATING CIRCUMSTANCES
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(People vs. Evangelio, G.R. No.
181902, August 31, 2011).
AID OF ARMED MEN: Aid of armed
men or persons affording immunity
requires (1) that the armed men are
20 | P a g e
MINORITY - In People vs. Agacer,

G.R. No. 177751, January 7, 2013
Accused is entitled to the privileged
mitigating circumstance of minority, which
graduates the penalty one degree lower. The
rationale of the law in extending such
leniency and compassion is that because of
his age, the accused is presumed to have
acted with less discernment. This is
regardless of the fact that his minority was
not proved during the trial and that his

birth certificate was belatedly presented for
our consideration, since to rule accordingly
will not adversely affect the rights of the
state, the victim and his heirs.
VOLUNTARY
SURRENDER
Voluntary surrender is a circumstance that

reduces the penalty for the offense. Its
requisites as a mitigating circumstance are
that: (1) the accused has not been actually
arrested; (2) the accused surrenders himself
to a person in authority or the latters
agent; and (3) the surrender is voluntary
(People vs. Del Castillo, G.R. No. 169084,
January 18, 2012; People vs. Placer, GR
No. 181753, October 09, 2013).
The surrender made after 14 days
from the date of killing cannot be
considered voluntary since his act did not
emanate from a natural impulse to admit
the killing or to save the police officers the
effort and expense that would be incurred
in his search and incarceration. (People vs.
Agacer, G.R. No. 177751, December 14,
2011).
Surrender is not voluntary where
the accused went to Barangay Chairman
after the killings to seek protection against
the retaliation of the victims relatives, not
to admit his participation in the killing of
the victims (People vs. Del Castillo, G.R. No.
169084, January 18, 2012).
The appellants are not entitled to
the mitigating circumstance of voluntary
surrender. The evidence shows that the
appellants were arrested when the police
officers manning the checkpoint stopped
the passenger jeepney driven by appellant
Ronald and arrested the appellants. The
fact that the appellants did not resist but
went peacefully with the peace officers does
not mean that they surrendered voluntarily
(People vs. Castillano, G.R. No. 139412,
April 2, 2003).
The essence of voluntary surrender
is spontaneity and the intent of the accused
to give himself up and submit himself to the
authorities either because he acknowledges
his guilt or he wishes to save the
authorities the trouble and expense that
may be incurred for his search and
capture. Without these elements, and
where the clear reasons for the supposed
surrender are the inevitability of arrest and
the need to ensure his safety, the surrender
is not spontaneous and, therefore, cannot
be characterized as "voluntary surrender"
to serve as a mitigating circumstance. In
the present case, when the petitioners
reported the incident and allegedly
surrendered the bladed weapon used in the
stabbing, such cannot be considered as
voluntary
surrender
within
the
21 | P a g e
contemplation of the law. Besides, there

was no spontaneity, because they only
surrendered after a warrant of their arrest
had already been issued (Belbis, Jr. vs.
People, GR No. 181052, November 14,
VENDICATION:
The
mitigating
circumstance of having acted in the
immediate vindication of a grave offense
was, likewise, properly appreciated. The
appellant was humiliated, mauled and
almost stabbed by the deceased. Although
the unlawful aggression had ceased when
the appellant stabbed Anthony, it was
nonetheless a grave offense for which the
appellant may be given the benefit of a
mitigating circumstance. But the mitigating
circumstance of sufficient provocation
cannot be considered apart from the
circumstance of vindication of a grave
offense. These two circumstances arose
from one and the same incident, i.e., the
attack on the appellant by Anthony, so that
they should be considered as only one
mitigating circumstance (People vs. Torpio,
G.R. No. 138984, June 4, 2004, ).
In vindication of grave offense,
criminal
exemption
of
accessories,
alternative circumstance of relationship
and defense of stranger, the concept of
relationship is the same. It refers to (1)
spouse, (2) ascendants, (3) descendants, or
(4) legitimate, natural or adopted brothers
or sisters or (5) of his relatives by affinity in
the same degrees. However, in defense of
relative, there is an additional concept of
relationship. It includes relatives by
consanguinity within the fourth civil degree.
Thus, an uncle is a relative within the
concept of defense of stranger (Reyes).
However, relationship of uncle and niece is
not an alternative circumstance (People vs.
Ulit, G.R. Nos. 131799-801, February 23,
2004).
PASSION - The following essential
requirements must be present: (1) there
was an act that was both unlawful and
sufficient to produce such condition
(passion or obfuscation) of the mind; and
(2) such act was not far removed from the
commission of the crime by a considerable
length of time, during which the perpetrator
might
have
recovered
his
normal
equanimity (People vs. Comillo, G.R. No.
186538, November 25, 2009). Four days
after the victims attempted on the virtue of
his wife, accused killed them. The period of
four days was sufficient enough a time
within which accused could have regained
his composure and self-control. Hence,
passion should not be appreciated (People
vs. Rebucan, G.R. No. 182551, July 27,
2011).

ALTERNATIVE CIRCUMSTANCE
Alternative circumstances are those
which must be taken into consideration as
aggravating or mitigating according to the
nature and effects of the crime and other
conditions attending its commission. Based
on a strict interpretation, alternative
circumstances are thus not aggravating
circumstances per se. (People vs. Orilla,
G.R. Nos. 148939-40, February 13, 2004,
En banc).
plotters agree, expressly or impliedly, to

commit the subject felony (People vs.
Carandang, G.R. No. 175926, July 6,
2011).
If the offender has committed a

felony in a state of intoxication, this
circumstance may be mitigating or
aggravating. If the intoxication is habitual
or intentional, the
circumstance
is
aggravating (People vs. Patelan, G.R. No.
182918, June 6, 2011). If the intoxication is
not habitual, and not subsequent to a plan
to commit a felony, and that the accused's
drunkenness affected his mental faculties,
the circumstance is mitigating (People vs.
Dela Cruz, G.R. No. 187683, February 11,
2010). For intoxication to be considered as
a mitigating circumstance, it must be
shown that the intoxication impaired the
willpower of the accused that he did not
know what he was doing or could not
comprehend the wrongfulness of his acts
(People vs. Patelan, supra). The absence of
any independent proof that his alcohol
intake affected mental faculties of the
accused militates against a claim of the
mitigating circumstance of intoxication
(People vs. Dela Cruz, supra).
(a) Nature of crime In recidivism,

the first crime, and the aggravated second
crime are embraced in the same Title of the
Revised Penal Code; In quasi-recidivism,
the nature of the first crime and aggravated
second crime is not material. In reiteration,
the penalty for the first crime is equal or
greater than that for the aggravated second
crime or the penalty for the first two crimes
is lighter than that for the aggravated third
crime. In habitual delinquency, the first,
second and third crimes must be a
habitual-delinquency crime, and that is,
serious or less serious physical injuries,
theft, robbery, estafa or falsification of
document.
EVIDENT PEMIDITATION
For evident premeditation to be
appreciated, the following must be proven
beyond reasonable doubt: (1) the time when
the accused determined to commit the
crime; (2) an act manifestly indicating that
the accused clung to his determination; and
(3) sufficient lapse of time between such
determination and execution to allow him
to reflect upon the circumstances of his act
(People vs. Duavis, G.R. No. 190861,
December 7, 2011).Accused told witness
that they were going to kill the doctor.
After less than thirty minutes, the accused
killed the victim, who is a doctor. Evident
premeditation should not be appreciated.
The span of time (less than thirty minutes),
from the time the accused showed their
determination to kill the victim up to the
time they shot the victim, could not have
afforded
them
full
opportunity
for
meditation
and
reflection
on
the
consequences of the crime they committed
(People vs. Patelan, G.R. No. 182918, June
6, 2011).Unlike evident premeditation,
there is no requirement for conspiracy to
exist that there be a sufficient period of
time to elapse to afford full opportunity for
meditation
and
reflection. Instead,
conspiracy arises on the very moment the
22 | P a g e
REPETITION
Differences of recidivism, quasirecidivism,
reiteracion
and
habitual
delinquency:
(b) Time element In recidivism, the

accused was convicted of the first crime by
final judgment at the time of trial of the
second crime. In quasi-recidivism, the
accused has been convicted by final
judgment of the first offense but before
beginning to serve his sentence or while
servicing of his sentence, he committed the
second crime. In reiteration, the accused
was convicted of the first crime (or first two
crimes) and served his sentences at the
time he was convicted of the second crime
(or third crime). In habitual delinquency,
the accused was convicted of first habitualdelinquency crime; within 10 years after
conviction or release, he was found guilty of
habitual-delinquency crime for the second
time; within 10 years after conviction or
release he was found guilty of habitualdelinquency crime for the third time or
oftener.
(c) Nature of the aggravating
circumstance - Recidivism and reiteration
are ordinary aggravating circumstances, the
presence of any of which will trigger the
application of the penalty for the second
crime committed in its maximum period
unless
it
is
off-set
by
mitigating
circumstance. Quasi-recidivism is special
aggravating circumstance, the presence of
which will trigger the application of the
penalty for the second crime or third crime
in its maximum period regardless of the
presence
of
mitigating
circumstance.
Habitual delinquency is an extraordinary or
special aggravating circumstance, the
presence of which will trigger the imposition

of additional penalty for the third or
subsequent crime. This is not subject to the
off-set rule.
SELF-DEFENSE
SELF-HELP PRINCIPLE - In People
vs. Apolinar, CA, 38 O.G. 2870, it was held:
Defense of property is not of such
importance as right to life, and defense of
property can be invoked as a justifying
circumstance only when it is coupled with
an attack on the person of one entrusted
with said property. However, in People vs.
Narvaez, G.R. Nos. L-33466-67, April 20,
1983, the SC found the presence of
unlawful aggression despite the fact that
the invasion of his property right was not
coupled by an attack against the accused.
The accused has the right to resist
pursuant Article 429 of the Civil Code,
which provides: The owner or lawful
possessor of a thing has the right to
exclude any person from the enjoyment and
disposal thereof. For this purpose, he may
use such force as may be reasonably
necessary to repel or prevent an actual or
threatened unlawful physical invasion or
usurpation of his property. However, since
the means employed to resist the invader
(killing) is not reasonable, the accused is
merely given the benefit of incomplete selfdefense. Justice Florenz Regalado stated
that the rule in Apolinar case may be
deemed to have been superseded by
Narvaez case.
UNLAWFUL AGGRESSION The
essential requisites of self-defense are the
following: (1) unlawful aggression on the
part of the victim; (2) reasonable necessity
of the means employed to prevent or repel
such aggression; and (3) lack of sufficient
provocation on the part of the person
resorting to self-defense. Verily, to invoke
self-defense successfully, there must have
been an unlawful and unprovoked attack
that endangered the life of the accused,
who was then forced to inflict severe
wounds upon the assailant by employing
reasonable means to resist the attack
(Belbis, Jr. vs. People, GR No. 181052,
November 14, 2012, Justice Peralta).
The rule consistently adhered to in
this jurisdiction is that when the accuseds
defense is self-defense he thereby admits
being the author of the death of the victim,
that it becomes incumbent upon him to
prove the justifying circumstance to the
satisfaction of the court. The rationale for
the shifting of the burden of evidence is
that the accused, by his admission, is to be
held
criminally
liable
unless
he
satisfactorily establishes the fact of selfdefense. But the burden to prove guilt
beyond reasonable doubt is not thereby
23 | P a g e
lifted from the shoulders of the State, which

carries it until the end of the proceedings.
In
other
words,
only
the onus
probandi shifts to the accused, for selfdefense is an affirmative allegation that
must be established with certainty by
sufficient and satisfactory proof. He must
now discharge the burden by relying on the
strength of his own evidence, not on the
weakness of that of the Prosecution,
considering that the Prosecutions evidence,
even if weak, cannot be disbelieved in view
of his admission of the killing (People vs.
Roman, GR No. 198110, July 31, 2013).
Unlawful
aggression
is
a
condition sine qua non for the justifying
circumstance of self-defense. Without it,
there can be no self-defense, whether
complete or incomplete, that can validly be
invoked. There is an unlawful aggression
on the part of the victim when he puts in
actual or imminent danger the life, limb, or
right of the person invoking self-defense.
There must be actual physical force or
actual use of a weapon. It is present only
when the one attacked faces real and
immediate threat to ones life. It must be
continuous;
otherwise,
it
does
not
constitute aggression warranting selfdefense (People vs. Gamez, GR No. 202847,
October 23, 2013). Accordingly, the
accused must establish the concurrence of
three elements of unlawful aggression,
namely: (a) there must be a physical or
material attack or assault; (b) the attack or
assault must be actual, or, at least,
imminent; and (c) the attack or assault
must be unlawful (People vs. Roman, GR
No. 198110, July 31, 2013).
Kinds of aggression - Unlawful
aggression is of two kinds: (a) actual or
material unlawful aggression; and (b)
imminent unlawful aggression. Actual or
material unlawful aggression means an
attack with physical force or with a weapon,
an offensive act that positively determines
the intent of the aggressor to cause the
injury. Imminent unlawful aggression
means an attack that is impending or at the
point of happening; it must not consist in a
mere threatening attitude, nor must it be
merely imaginary, but must be offensive
and positively strong (like aiming a revolver
at another with intent to shoot or opening a
knife and making a motion as if to attack).
Imminent unlawful aggression must not be
a mere threatening attitude of the victim,
such as pressing his right hand to his hip
where
a
revolver
was
holstered,
accompanied by an angry countenance, or
like aiming to throw a pot (People v. Del
Castillo, G.R. No. 169084, January 18,
2012; People vs. Roman, GR No. 198110,
July 31, 2013).

Ordinarily there is a difference
between the act of drawing ones gun and
the act of pointing ones gun at a target.
The former cannot be said to be unlawful
aggression on the part of the victim. For
unlawful aggression to be attendant there
must be a real danger to life or personal
safety. Unlawful aggression requires an
actual, sudden and unexpected attack, or
imminent danger thereof, and not merely a
threatening or intimidating attitude. Here,
the act of the victim in drawing a gun from
his waist cannot be categorized as unlawful
aggression. Such act did not put in real
peril the life or personal safety of appellant.
The facts surrounding the case must,
however, be differentiated from current
jurisprudence on unlawful aggression.
Accused was justified in defending himself
considering that victim was a trained police
officer and an inebriated and disobedient
colleague. Even if the victim did not point
his firearm at accused, there would still be
a finding of unlawful aggression on the part
of the victim (Nacnac vs. People, G.R.
No. 191913, March 21, 2012).
In People vs. Fontanilla, G.R. No.
177743, January 25, 2012 - Indeed, had
victim really attacked accused, the latter
would have sustained some injury from the
aggression. It remains, however, that no
injury of any kind or gravity was found on
the person of accused when he presented
himself to the hospital. In contrast, the
physician who examined the cadaver of
victim testified that he had been hit on the
head more than once. The plea of selfdefense was thus belied, for the weapons
used by accused and the location and
number of wounds he inflicted on victim
revealed his intent to kill, not merely an
effort to prevent or repel an attack from
victim. We consider to be significant that
the gravity of the wounds manifested the
determined effort of the accused to kill his
victim, not just to defend himself.
Ceased aggression - The unlawful
aggression on the part of the victim ceased
when accused Rodolfo was able to get hold
of the bladed weapon. Although there was
still some struggle involved between the
victim and accused, there is no doubt that
the latter, who was in possession of the
same weapon, already became the unlawful
aggressor. Retaliation is not the same as
self-defense. In retaliation, the aggression
that was begun by the injured party already
ceased when the accused attacked him,
while in self-defense the aggression still
existed when the aggressor was injured by
the accused. Such an aggression can also
be surmised on the four stab wounds
sustained by the victim on his back. It is
hard to believe based on the location of the
stab wounds, all at the back portion of the
24 | P a g e
body, that accused was defending himself.

It would have been different if the wounds
inflicted were located in the front portion of
the victim's body. Thus, the first element of
self-defense is not present (Belbis, Jr. vs.
Necessary means - The means
employed by a person claiming self-defense
must be commensurate to the nature and
the extent of the attack sought to be
averted, and must be rationally necessary
to prevent or repel an unlawful aggression.
In the present case, four stab wounds that
are the product of direct thrusting of the
bladed weapon are not necessary to prevent
what the accused claim to be the
continuous unlawful aggression from the
victim as the latter was already without any
weapon. In connection therewith, having
established that there was no unlawful
aggression on the part of the victim when
he was stabbed, accused cannot avail of the
mitigating circumstance of incomplete selfdefense (Belbis, Jr. vs. People, GR No.
Peralta).
Under
doctrine
of
rationale
equivalence, plea of self-defense would
prosper if there is a rational equivalence
between the means of attack by the
unlawful aggressor and the means of
defense by the accused that would
characterize the defense as reasonable. The
doctrine
of
rational
equivalence
presupposes the consideration not only of
the nature and quality of the weapons used
by the defender and the assailantbut of
the totality of circumstances surrounding
the
defense vis--vis, the
unlawful
aggression.
Clearly,
this
continuous
attack by accused despite the fact that
aggressor already was neutralized by the
blow constitutes force beyond what is
reasonably
required
to
repel
the
aggressionand is therefore unjustified
(Espinosa
vs.
People,
G.R.
No.
181071, March 15, 2010).
BATTERED WOMAN SYNDROME:
"Battered Woman 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 of RA No. 9262). Each of
the phases of the cycle of violence must be
proven to have characterized at least two
battering episodes between the accused
and her intimate partner and such final
episode produced in the battered persons
mind an actual fear of an imminent harm
from her batterer and an honest belief that
she needed to use force in order to save
her life. (People vs. Genosa, G.R. No.

135981, January 15, 2004). 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; Answer to the 2010 Bar
Examination Questions by UP Law
Complex). 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-victim had not yet committed
unlawful aggression. In Genosa supra, it
was held that it is crucial to the BWS
defense is the state of mind of the battered
woman at the time of the offense. She must
have actually feared imminent harm from
her batterer and honestly believed in the
need to kill him in order to save her life.
That is why even in the absence of actual
aggression or any other element of selfdefense, a woman, who is found to be
suffering from battered woman syndrome
is not criminally liable for killing her
husband.
IRRESISTABLE FORCE
A person who acts under the
compulsion of an irresistible force, like one
who acts under the impulse of an
uncontrollable fear of equal or greater
injury, is exempt from criminal liability
because
he
does
not
act
with
freedom. Actus me invite factus non est
meus actus. An act done by me against my
will is not my act. The force contemplated
must be so formidable as to reduce the
actor to a mere instrument who acts not
only without will but against his will. The
duress, force, fear or intimidation must be
present, imminent and impending, and of
such nature as to induce a well-grounded
apprehension of death or serious bodily
harm if the act be done. A threat of future
injury is not enough. The compulsion must
be of such a character as to leave no
opportunity for the accused for escape or
self-defense in equal combat (People vs.
Dequina, G.R. No. 177570, January 19,
2011)
MINORITY
To exempt a minor, who is 15 years
old or more, from criminal liability, it must
be shown that he committed the criminal
act without discernment. Choosing an
isolated and dark place to perpetrate the
crime, to prevent detection and boxing the
victim to weaken her defense are indicative
of accuseds mental capacity to fully
understand the consequences of his
25 | P a g e
unlawful action (People vs. Jacinto, G.R.

No. 182239, March 16, 2011).
SUSPENSION OF SENTENCE While Section 38 of RA 9344 provides that
suspension of sentence can still be applied
even if the child in conflict with the law is
already 18 years of age or more at the time
of the pronouncement of his/her guilt,
Section 40 of the same law limits the said
suspension of sentence until the child
reaches the maximum age of 21. Hence, the
child in conflict with the law, who reached
21 years, cannot avail of privilege of
suspension of sentence. However, 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 (People vs. Mantalba, G.R. No.
186227, July 20, 2011).
CREDIT OF THE PREVENTIVE
IMPRISONMENT OF CHILD - Under
Article 29 of RPC, a convicted recidivist is
not entitled to a full or 4/5 credit of his
preventive imprisonment. However, if the
convict is a child, the applicable rule for
crediting the period of commitment and
detention is not Article 29 of RPC but
Section 41, RA 9344. Under the said
provision, the full time spent in actual
commitment and detention of juvenile
delinquent shall be credited in the services
of his sentence.
INSANITY
Acts penalized by law are always
presumed to be voluntary, and it is
improper to conclude that a person acted
unconsciously in order to relieve him of
liability, unless his insanity is conclusively
proved (People vs. Pambid, GR No. 124453,
March 15, 2000).Insanity is the exception
rather than the rule in the human
condition. The presumption, under Article
800 of the Civil Code, is that every human
is sane. Anyone who pleads the exempting
circumstance of insanity bears the burden
of proving it with clear and convincing
evidence. It is in the nature of confession
and avoidance. An accused invoking
insanity admits to have committed the
crime but claims that he or she is not guilty
because of insanity (People vs. Tibon, G.R.
No. 188320, June 29, 2010).
Insanity
as
an
exempting
circumstance must relate to the time
immediately preceding or coetaneous with
the commission of the offense with which
accused is charged (People vs. Tibon,
supra).

COGNITION TEST AND VOLITION
TEST - The case of Formigones established
two distinguishable tests to determine the
insane condition of the accused:
(a) The test of cognition whether
there was a complete deprivation of
intelligence in committing the criminal act
After satisfying his lust, accused threatened
the victim. This implies that accused knew
what he was doing, that it was wrong, and
wanted to keep it a secret. It also indicated
that the crime was committed during one of
his lucid intervals. Accused is not exempt
from liability for failure to pass the
cognition test (People vs. Alipio, G.R. No.
185285, October 5, 2009) and
Evidence tended to show that
accused was not deprived of reason at all
and can still distinguish right from wrong
when, after satisfying his lust, he
threatened victim. This single episode
irresistibly implies, for one, that accused
knew what he was doing, that it was wrong,
and wanted to keep it a secret. And for
another, it indicated that the crime was
committed during one of lucid intervals of
accused (People vs. Alipio, supra).
(b) The test of volition whether
there was a total deprivation of freedom of
the will. In the Bonoan case, schizophrenic
accused, who acted under irresistible
homicidal impulse to kill (volition test), was
acquitted due to insanity. This is not
anymore a good rule. Even if the mental
condition of the accused had passed the
volition test, the plea of insanity will not
prosper unless it also passed the cognition
test. The controlling test is cognition (People
vs. Opuran, G.R. Nos. 147674-75, March
17, 2004).
In recent Supreme Court cases, the
plea of insanity of person, who is suffering
from schizophrenia, was rejected because of
failure to pass the cognition test. In sum, a
schizophrenic accused must be deprived
completely of intelligence to be exempt from
criminal liability (See: People vs. Medina,
G.R. No. 113691, February 6, 1998; People
vs. Pascual, G.R. No. 95029, March 24,
1993).If a person (such as sex maniac,
homicidal maniac or kleptomaniac)had
merely passed the volition test but not the
cognition test, he will only be given the
benefit of mitigating circumstance of
illness. Diminution of freedom of the will is
enough to mitigate the liability of the
offender suffering from illness (See: People
vs. Rafanan, Jr. November 21, 1991, G.R.
No. 54135, November 21, 1991).
ABSOLUTORY CAUSE IN CRIME
AGAINST PROPERTY
26 | P a g e
No criminal liability is incurred by

the stepfather who commits malicious
mischief against his stepson; by the
stepmother who commits theft against her
stepson; by the stepfather who steals
something from his stepson; by the
grandson
who
steals
from
his
grandfather; by the accused who swindles
his sister-in-law living with him; and by the
son who steals a ring from his mother
(Intestate Estate of Gonzales vs. People,
G.R. No. 181409, February 11, 2010). The
absolutory cause applies to theft, swindling
and malicious mischief. It does not apply to
theft through falsification or estafa through
falsification (Intestate Estate of Gonzales vs.
2010). There are two viewson whether the
extinguishment of marriage by death of the
spouse dissolves the relationship by affinity
for purpose of absolutory cause. The first
holds
that
relationship
by
affinity
terminates with the dissolution of the
marriage, while the second maintains that
relationship continues even after the death
of the deceased spouse. The principle of pro
reocalls for the adoption of the continuing
affinity view because it is more favorable to
the accused (Intestate estate of Gonzales vs.
2010).
INSTIGATION AND ENTRAPMENT
Instigation
means
luring
the
accused into a crime that he, otherwise,
had no intention to commit, in order to
prosecute him." It differs from entrapment
which is the employment of ways and
means in order to trap or capture a
criminal. In instigation, the criminal intent
to commit an offense originates from the
inducer and not from the accused who had
no intention to commit and would not have
committed it were it not for the prodding of
the inducer. In entrapment, the criminal
intent or design originates from the accused
and the law enforcers merely facilitate the
apprehension of the criminal by using ruses
and schemes. Instigation results in the
acquittal of the accused, while entrapment
may lead to prosecution and conviction.
Instigation
means
luring
the
accused into a crime that he, otherwise,
had no intention to commit, in order to
prosecute him. It differs from entrapment
which is the employment of ways and
means in order to trap or capture a
criminal. In instigation, the criminal intent
to commit an offense originates from the
inducer and not from the accused who had
no intention to commit and would not have
committed it were it not for the prodding of
the inducer. In entrapment, the criminal
intent or design originates from the accused
and the law enforcers merely facilitate the

apprehension of the criminal by using ruses
and schemes. Instigation results in the
acquittal of the accused, while entrapment
may lead to prosecution and conviction
(People vs. Espiritu, G.R. No. 180919,
January 9, 2013).
In People vs. Espiritu et. Al., G.R.
No. 180919, January 9, 2013 - Here, the
evidence clearly established that the police
operatives employed entrapment, not
instigation, to capture appellant and her
cohorts in the act of selling shabu. It must
be recalled that it was only upon receipt of
a report of the drug trafficking activities of
Espiritu from the confidential informant
that a buy-bust team was formed and
negotiations for the sale of shabu were
made. Also, appellant testified that she
agreed to the transaction of her own free
will when she saw the same as an
opportunity to earn money. Notably too,
appellant was able to quickly produce a
sample. This confirms that she had a ready
supply of the illegal drugs. Clearly, she was
never forced, coerced or induced through
incessant
entreaties
to
source
the
prohibited drug for Carla and PO3 Cario
and this she even categorically admitted
during her testimony.
Moreover, a police officers act of
soliciting drugs from appellant during the
buy-bust operation, or what is known as
the "decoy solicitation," is not prohibited by
law and does not invalidate the buy-bust
operation. in a prosecution for sale of illicit
drugs, any of the following will not
exculpate the accused: "(1) that facilities for
the commission of the crime were
intentionally placed in his way; or (2) that
the criminal act was done at the solicitation
of the decoy or poseur-buyer seeking to
expose his criminal act; or (3) that the
police authorities feigning complicity in the
act were present and apparently assisted in
its commission."
Hence, even assuming that the
PAOCTF operatives repeatedly asked her to
sell them shabu, appellants defense of
instigation will not prosper. This is
"especially true in that class of cases where
the offense is the kind that is habitually
committed, and the solicitation merely
furnished evidence of a course of conduct.
Mere deception by the police officer will not
shield the perpetrator, if the offense was
committed by him free from the influence or
instigation of the police officer."
PARTICIPATION
Chief actor - Criminal or chief actor
is the person who actually committed the
crime. He is the one who committed or
omitted the act, which causes the criminal
27 | P a g e
result. He directly perpetrated the acts,

which constitute the crime. With or
without conspiracy, the chief actor is a
principal by direct participation.
Criminal participator - Criminal
participator
is
the
offender
who
participated in committing a crime by
indispensable or dispensable act. He
performed an act, which is not constitutive
of felony but intended to give moral or
material aid to the chief actor.
(1) With conspiracy - If there is
conspiracy, the criminal participator or
cooperator is a principal by direct
participation. The act of the chief actor
is considered the act of the criminal
participator.
(2) Without conspiracy - If there is no
conspiracy, criminal participator may
be held liable as principal by
indispensable cooperation, accomplice
or accessory depending upon the nature
and time of participation. A criminal
participator may participate in the
commission of the crime by previous,
simultaneous and/or subsequent acts.
(a) Previous or simultaneous acts
The criminal participator by
previous or simultaneous acts is
liable either as principal by
indispensable
cooperation
or
accomplice. If the cooperation is
indispensable, the participator is a
principal
by
indispensable
cooperation; if dispensable an
accomplice.
(b) Subsequent acts The
criminal participator by subsequent
acts is liable as an accessory. An
accessory does not participate in the
criminal design, nor cooperate in the
commission of the felony, but, with
knowledge of the commission of the
crime, he subsequently takes part
by any of the three modes under
Article 19.
The liability of accessory and
principal should also be considered as
quasi-collective. It is quasi-collective in the
sense that the principal and the accessory
are liable for the felony committed but the
penalty for the latter is two degrees lower
than that for the former.
ACCOMPLICE AND CONSPIRATOR
- In People vs. PO1 Eusebio G.R. No.
182152, February 25, 2013 - It noted that
victim had only three gunshot wounds
despite the many shots fired at him. Since
Bongon shot victim thrice at very close
range, causing him to fall, it appears that it

was only Bongon who inflicted those
wounds. And, considering that the
prosecution evidence did not show that the
shots three other accused fired from their
guns made their marks, there is doubts
that the three agreed beforehand with
Bongon to kill victim. It cannot rule out the
possibility that they fired their guns merely
to scare off outside interference.
Because
witnesses
are
rarely
present when several accused come to an
agreement or conspired to commit a crime,
such agreement is usually inferred from
their "concerted actions" while committing
it. On the other hand, accomplices are the
persons who, not being
principals,
cooperate in the execution of the offense by
previous or simultaneous acts.
The
line
that
separates
a
conspirator by concerted action from an
accomplice by previous or simultaneous
acts is indeed slight. Accomplices do not
decide whether the crime should be
committed; but they assent to the plan and
cooperate in its accomplishment. The
solution in case of doubt is that such doubt
should be resolved in favor of the accused.
It was held that when there is doubt as to
whether a guilty participant in a homicide
performed the role of principal or
accomplice, the Court should favor the
"milder form of responsibility." He should be
given the benefit of the doubt and can be
regarded only as an accomplice. Hence, in
the case at bar, the other three accused
should be granted the benefit of doubt and
should considered merely as accomplices.
It is immaterial whether accused
acted as a principal or an accomplice. What
really matters is that the conspiracy was
proven and he took part in it. Without the
participation of accused, the offense would
not have been committed. He was the one
who paved the way for victim to board the
vehicle and his closeness with the victim
led the latter to trust the former, thus,
accomplishing their devious plan of
kidnapping
him.
Consequently,
the
conspirators shall be held equally liable for
the crime, because in a conspiracy the act
of one is the act of all (People vs. Cruz, Jr.,
GR No. 168446, September 18, 2009).
ACCOMPLICE - In order that a
person may be considered an accomplice,
namely, (1) that there be community of
design; that is knowing the criminal design
of the principal by direct participation, he
concurs with the latter in his purpose; (2)
that he cooperates in the execution by
previous or simultaneous act, with the
intention of supplying material or moral aid
in the execution of the crime in an
efficacious way; and (3) that there be a
28 | P a g e
relation between the acts done by the

principal and those attributed to the person
charged as accomplice (People vs. Gambao,
GR No. 172707, October 01, 2013).
Accused entered the room where the
victim was detained and conversed with
kidnappers regarding stories unrelated to
the kidnapping. Accused should be held
liable as accomplice. The defenses raised by
accused are not sufficient to exonerate her
criminal liability. Assuming arguendo that
she just came to the resort thinking it was
a swimming party, it was inevitable that
she acquired knowledge of the criminal
design of the principals when she saw
victim being guarded in the room. A
rational person would have suspected
something was wrong and would have
reported such incident to the police.
Accused, however, chose to keep quiet; and
to add to that, she even spent the night at
the cottage. It has been held before that
being present and giving moral support
when a crime is being committed will make
a person responsible as an accomplice in
the crime committed. It should be noted
that the accused-appellants presence and
company were not indispensable and
essential to the perpetration of the
kidnapping for ransom; hence, she is only
liable as an accomplice. Moreover, in case
of doubt, the participation of the offender
will be considered as that of an accomplice
rather than that of a principal (People vs.
Gambao, GR No. 172707, October 01,
2013).
X and Y did not participate when
the victim was forcibly abducted. However,
they owned the safehouse, the basement of
their house, where the kidnapped victim
was detained. X assisted the kidnappers
when the victim the basement stairs of the
safehouse. Y brought foods to the
safehouse. Are X and Y liable as accomplice
or principal by direct participation? They
are liable as principals because of
conspiracy. Their participations are of
minor importance. These acts pertain to
those
committed
by
mere
accomplices. However, their acts coincide
with their ownership of the safehouse. They
provided the place where the victim is to be
detained, which is logically a primary
consideration in a conspiracy to commit the
crime of kidnapping for ransom. Ownership
of the safehouse and their participations
reasonably indicate that they were among
those who at the outset planned, and
thereafter concurred with and participated
in the execution of the criminal design
(People vs. Salvador, GR No. 201443, April
10, 2013).
RECLUSION PERPETUA AND LIFE
IMPRISONMENT

If the law was amended to change
the penalty from life imprisonment to
reclusion perpetua, the amendatory law,
being more lenient to the accused than the
previous
law,
should
be
accorded
retroactive application. The penalty of
reclusion perpetua is a lighter penalty than
life imprisonment. (People vs. Pang, G.R.
No. 176229, October 19, 2011).
ISLAW
RA 9165 provides that illegal
possession of less than five (5) grams of
shabu is penalized with imprisonment of 12
years and 1 day to 20 years. The court
sentenced the accused to suffer a straight
penalty of imprisonment of 12 years and 1
day. Is the penalty imposed by the court
correct? No. The indeterminate Sentence
Law mandates that, in case of a special law,
the accused shall be sentenced "to an
indeterminate sentence, the maximum term
of which shall not exceed the maximum
fixed by said law and the minimum shall
not be less than the minimum term
prescribed by the same." (Asiatico vs.
People, G.R. No. 195005, September 12,
2011)
GRADUATION OF PENALTY
GRADUATING FACTORS - Under
these provisions, the fixed penalty shall be
graduated by one or more degrees on the
basis of the following factors:
FACTORS
NUMBER OF
DEGREES
Stage of Execution
Frustrated stage ---------------------------------------------------- 1
Attempted stage --------------------------------------------------- 2
Except: Frustrated homicide, parricide, murder ------ 1 or 2
Attempted homicide, parricide, murder -----1 or 2
Nature of Participation
Accomplice -------------------------------------------------------- 1
Accessory ---------------------------------------------------------- 2
Privileged Mitigating Circumstance
Minority -----------------------------------------------------------------1
Incomplete justification or exemption ---------------------------1 or 2
(Except: Accident)
The composition of a graduated

penalty will depend on the composition of
the penalty fixed by law.
General Rule: Single Penalty Graduated penalty is generally a single
penalty. Example If the fixed penalty is
death, the penalty next lower in degree is
reclusion perpetua; if the fixed penalty is
reclusion perpetua, the penalty next lower
in degree is reclusion temporal; if the fixed
penalty is reclusion perpetua to death, the
penalty next lower in degree is also
reclusion temporal. The graduated penalty
of reclusion temporal is a single penalty.
First exception: Fixed penalty in
period If the penalty is composed of
single period, the graduated penalty must
29 | P a g e
also be composed of single period. If the

penalty prescribed by law is arresto mayor
in its maximum period, the penalty next
lower in degree is arresto mayor in its
medium period. If the penalty is composed
of two periods, the graduated penalty must
also be composed of two periods. If the
penalty prescribed by law arresto mayor in
its maximum period to prision correctional
in its minimum period, the penalty next
lower in degree is arresto mayor in its
minimum and medium periods. If the
penalty is composed of three periods, the
graduated penalty must also be composed
of three periods.
First Exception: Fixed penalty with
period and penalty components If the
fixed penalty is composed of period
component and penalty component, the
graduated penalty must be composed of
three period components. Example: The
penalty prescribed by law is reclusion
temporal in its maximum period to reclusion
perpetua. This penalty has a period
component and a full penalty. Hence, one
degree lower than this penalty must
composed of three periods, and that is:
Prision mayor in its maximum period to
reclusion temporal in its medium period
SPECIAL
MITIGATING
CIRCUMSTANCE: Under Article 64 (5), the
presence of two or more mitigating
circumstances will graduate the divisible
penalty prescribed by law to one degree
lower. This is called special mitigating
circumstance. However, the appreciation
of this circumstance is subject to two
conditions: (1) the penalty prescribed by
law must be divisible; and (2) there must
be no aggravating circumstance. In People
vs. Takbobo, G.R. No. No. 102984, June
30, 1993 - Accused was found guilty of
parricide punishable by the penalty of
reclusion perpetua to death. Applying
Article 63, when the penalty is composed
of two indivisible penalties, the penalty
cannot be lowered by one degree, no
matter
how
many
mitigating
circumstances are present. The rule on
special mitigating circumstance is found in
Article 64 (5) which provides the "rules for
the application of penalties which contain
three
periods,"
meaning,
divisible
penalties. Article 64 (5) is inapplicable.
Thus, the rule applicable in said case is
found in Article 63, and not in Article 64.
If
there
are
two
mitigating
circumstances, the penalty prescribed law
shall graduated to one degree lower, and
the graduated penalty shall be applied in it
medium period. If there are three mitigating
circumstances taken as special mitigating,
the penalty prescribed law shall graduated
to one degree lower, and the graduated

penalty shall be applied in it minimum
period. Reason: The two mitigating
circumstances were taken to constitute
special mitigating circumstance; while the
remaining mitigating circumstance was
used to apply the graduated penalty in its
minimum period.
GRADUATING DEATH PENALTY For purposes of graduating penalty, the
penalty of death is still the penalty to be
reckoned with. RA No. 9346, which
prohibits the imposition of death penalty,
does not exclude death penalty in the order
of graduation of penalties. In qualified rape,
the penalty for accomplice is reclusion
perpetua, the penalty next lower in degree
than death prescribed for the crime (See:
People vs. Jacinto, G.R. No. 182239, March
16, 2011).
SUPPLETORY APPLICATION - A
special law prescribes the penalty of 10
years of imprisonment for violation thereof
while another law prescribes the penalty of
arresto mayor. Can the rules on graduation
of penalties or application of penalty on its
proper imposable period under RPC
applicable to violation of these special
laws?(a) Where the special law has not
adopted the Spanish penalties (10 years of
imprisonment) under RPC, rules on
graduation of penalties or application of
penalty on its proper imposable period is
not applicable. Article 10 of RPC on
suppletory effects of the Code cannot be
invoked where there is a legal or physical
impossibility
of
such
supplementary
application (People vs. Mantalba, G.R. No.
186227, July 20, 2011). The penalty of 10
years of imprisonment can neither be
graduated by decrees nor divided into three
periods. (b) Where the special law has
adopted the Spanish penalty (arresto
mayor) under RPC, rules on graduation of
penalties or application of penalty on its
proper imposable period are applicable.
Where the penalty under a special law is
actually taken from the Revised Penal Code
in its technical nomenclature, the penal
system under the Code is necessarily
applicable to this law (See: People vs.
Mantalba, supra). This adoption reveals the
statutory intent to give the provisions on
penalties for felonies under RPC the
corresponding application to said special
law, in the absence of any express or
implicit proscription in these special laws
(See: People vs. Simon, G.R. No. 93028,
July 29, 1994).
SUBSIDIARY PENALTY UNDER RA No.
10159
Article 39 of the Revised Penal Code
as amended by RA No. 10159 provides: If
the convict has no property with which to
30 | P a g e
meet the fine mentioned in paragraph 3 of

the next preceding article, he shall be
subject to a subsidiary personal liability at
the rate of one day for each amount
equivalent to the highest minimum wage
rate prevailing in the Philippines at the time
of the rendition of judgment of conviction
by the trial court, subject to the following
rules:
1. If the principal penalty imposed
be prision correctional or arresto and fine,
he shall remain under confinement until
his fine referred in the preceding paragraph
is
satisfied,
but
his
subsidiary
imprisonment shall not exceed one-third of
the term of the sentence, and in no case
shall it continue for more than one year,
and no fraction or part of a day shall be
counted against the prisoner.
2. When the principal penalty
imposed be only a fine, the subsidiary
imprisonment shall not exceed six months,
if the culprit shall have been prosecuted for
a grave or less grave felony, and shall not
exceed fifteen days, if for a fight felony.
3. When the principal penalty
imposed is higher than prision correctional,
no subsidiary imprisonment shall be
imposed upon the culprit.
4. If the principal penalty imposed is
not to be executed by confinement in a
penal institution, but such penalty is of
fixed duration, the convict, during the
period of time established in the preceding
rules, shall continue to suffer the same
deprivations as those of which the principal
penalty consists.
5. The subsidiary personal liability
which the convict may have suffered by
reason of his insolvency shall not relieve
him from the fine in case his financial
circumstances should improve.
Special law - In Escalante vs.
People, G.R. No. 192727, January 9, 2013 The penalty for election offense is
imprisonment of not less than one year but
not more than six years. Under ISLAW, if
the offense is punished by special law, the
court shall sentence the accused to an
indeterminate sentence, the maximum term
of which shall not exceed the maximum
fixed by said law and the minimum shall
not be less than the minimum term
prescribed by the same. Applying the
ISLAW, the imposable penalty for violation
of the election gun ban should have a
maximum period, which shall not exceed
six (6) years, and a minimum period which
shall not be less than one (1) year.

Dangerous drugs law - Section 98
of RA No. 9165 provided that, where the
offender is a minor, the penalty for acts
punishable by life imprisonment to death
provided in the same law shall be reclusion
perpetua to death. Basically, this means
that the penalty can now be graduated as it
has adopted the technical nomenclature of
penalties provided for in the Revised Penal
Code. Since the privilege circumstance of
minority is present, the proper penalty
should be one degree lower than reclusion
perpetua, which is reclusion temporal.
Necessarily,
also
applying
the
Indeterminate Sentence Law (ISLAW), the
minimum penalty should be taken from the
penalty next lower in degree which
is prision mayor and the maximum penalty
shall be taken from the medium period
of reclusion temporal, there being neither
ordinary mitigating circumstance nor
aggravating
circumstance
(People
vs.
Udtojan GR No. 186227, July 20, 2011,
Justice Peralta).
X was in possession of marijuana
and shabu. Can the accused be convicted
of two counts of illegal possession of
dangerous drugs? Absent any clear
interpretation as to the application of the
penalties under RA No. 9165, the same
shall construe it in favor of the accused for
the subject provision is penal in nature. It
is a well-known rule of legal hermeneutics
that penal or criminal laws are strictly
construed against the state and liberally in
favor of the accused. Thus, an accused
may only be convicted of a single offense of
possession of dangerous drugs if he or she
was caught in possession of different kinds
of dangerous drugs in a single occasion. If
convicted, the higher penalty shall be
imposed, which is still lighter if the accused
is convicted of two (2) offenses having two
(2) separate penalties. This interpretation
is more in keeping with the intention of the
legislators as well as more favorable to the
accused (David vs. People, Gr No. 181861,
X confessed to the crime of illegal
possession of dangerous drugs where
Section 11 of RA No. 9165 prescribes the
penalty of 12 years and 1 day to 20 years. If
you were the judge trying the case: (a) can
you appreciate the mitigating circumstance
of confession? (b) What penalty would you
impose on X? (c) Would your answer be the
same regarding the appreciation of the
modifying circumstance, if X is a minor? (d)
What penalty would you impose on X?
Answer: (a) Since the penalties
under RA No. 9165 are different from those
under RPC, the rules for the application of
penalties and other relevant provisions
such as mitigating circumstance of
31 | P a g e
confession
and
privilege
mitigating
circumstance of minority cannot be given
suppletory effect (People vs. Simon, G.R.
No. 93028, July 29, 1994). Moreover,
Section 98 of RA No. 9165 provides that the
provisions of RPC shall not apply to the
provisions of this Act, except in the case of
minor offenders. Since there is no showing
that X is a minor, the circumstance of
confession and minority will not be
appreciated in favor of X.
(b) Applying the second rule of the
ISLAW,
the
maximum
indeterminate
penalty must not exceed 20 years and the
minimum penalty must not be less than 12
years and 1 day. If I am the judge, I will
sentence the accused to suffer 14 years of
imprisonment as minimum penalty to 18
years as maximum penalty.
(c) Since X is a minor, the provisions
of RPC including those on modifying
circumstances are applicable to crime
punishable under RA No. 9165. Hence,
mitigating circumstance of confession and
privilege
mitigating
circumstance
of
minority should be appreciated in favor of X
(People vs. Montalaba, G.R. No. 186227,
July 20, 2011, Justice Peralta);
(d) The penalty prescribed for the
crime committed is 12 years and 1 day to
20 years. This is equivalent to reclusion
temporal.
Since
privilege
mitigating
circumstance of minority and mitigating
circumstance of confession are present, the
penalty should be graduated to prision
mayor to be applied in its minimum period.
The maximum penalty under the ISLAW
shall be taken from minimum period of
prision mayor, which has a range from 6
years and 1 day to 8 years, while the
minimum penalty shall be fixed within the
duration of the penalty of prision
correccional, the penalty one degree lower
than that prescribed by law, which has a
ranged from 6 months and 1 day to 6 years.
If I am the judge, I will sentence the
accused to suffer 4 years of prision
correccional as minimum penalty to 7 years
of prision mayor as maximum penalty.
THREE-FOLD AND 40 YEARS
LIMITATION RULE
Simultaneous service - When the
culprit has to serve two or more penalties,
he shall serve them simultaneously if the
nature of the penalties will so permit. Thus,
convict could serve simultaneously arresto
mayor and fine, prision correccional and
perpetual absolute disqualification, or
reclusion perpetua and civil interdiction. In
sum, while lingering in prison, convict
could pay fine, return the property
confiscated, be disallowed to cast his vote

or to act function as a public officer. In
Rodriguez vs. Director of Prisons, G.R. No.
L-35386, September 28, 1972, En Banc Penalties
which
could
be
served
simultaneously with other penalties, are
perpetual
or
temporary
absolute
disqualification, perpetual or temporary
special disqualification, public censure,
suspension from public office and other
accessory penalties. There are only two
modes of serving two or more (multiple)
penalties: simultaneously or successively.
Successive service When the culprit has to
serve two or more penalties, he shall serve
them successively if the nature of the
penalties will not permit simultaneous
service.
Convict must serve multiple
penalties successively: (1) where the
penalties to be served are destierro and
imprisonment; and (2) where the penalties
to be served are imprisonment. However,
the successive service of sentences is
subject to the three-fold rule and 40-year
limitation rule.
a. Three-fold rule - The maximum
period of the imprisonment that convict
must suffer in serving multiple penalties
must not exceed threefold the length of
time corresponding to the most severe of
the penalties imposed upon him. A was
sentenced to suffer penalty of 7 years of
prision mayor for serious physical injuries,
6 years of prision correccional for qualified
less serious physical injuries, 5 years of
prision correccional for robbery and 5
years of prison correccional for theft. The
total duration of the penalties imposed on
him is 23 years. The most severe penalty
imposed on him is 7 years of prision
mayor. Thus, threefold the length of time
corresponding to the most severe of the
penalties is 21 years. A will be
imprisoned for 21 years because of the
three-fold rule.
b. Forty-year limitation rule
The maximum period of the imprisonment
that convict must suffer in serving
multiple penalties must not exceed forty
years. A was sentenced to suffer three
penalties of 15 years of reclusion temporal
for three counts of homicide and the
penalty of 10 years of prision mayor for
serious physical injuries. The total
duration of the penalties imposed on him
is 55 years. The most severe penalty
imposed on him, is 15 years of reclusion
temporal. Thus, threefold the length of time
corresponding to the most severe of the
penalties is 45 years. A will be
imprisoned for 40 years because of the
forty year limitation rule.
the length of time corresponding to the

most severe of the penalties imposed upon
him. No other penalty to which he may be
liable shall be inflicted after the sum total
of those imposed equals the said maximum
period. Such maximum period shall in no
case exceed forty years. Applying said
rule, despite the four penalties of reclusion
perpetua for four counts of qualified theft,
accused-appellant
shall
suffer
imprisonment for a period not exceeding 40
years (People vs. Mirto, G.R. No. 193479,
October 19, 2011).
SPECIAL COMPLEX CRIME
Kidnapping with homicide - Old
rule: (1) Where the accused kidnapped the
victim for the purpose of killing him, and he
was in fact killed by his abductor, the crime
committed was the complex crime of
kidnapping with murder as the kidnapping
of the victim was a necessary means of
committing the murder. (2) Where the
victim was kidnapped not for the purpose of
killing him but was subsequently slain as
an afterthought, two (2) separate crimes of
kidnapping and murder were committed.
Where there is no actual detention (People
vs. Masilang, 1986) or intent to deprive
liberty (People vs. Estacio Jr., G.R.
No. 171655, July 22, 2009, En Banc)
killing the person is murder. Demand for
ransom will not convert the crime into
kidnapping.
Present rule: 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 kidnapping and murder
or homicide can no longer be complexed,
nor be treated as separate crimes, but shall
be punished as a special complex crime
(People
vs.
Ramos,
G.R.
No.
118570, October 12, 1998, En Banc, People
vs. Larranaga, 138874-75, February 3,
2004, En Banc; People vs. Montanir, GR
No. 187534, April 04, 2011, Justice Peralta)
If kidnapping is a necessary means
to commit frustrated murder, special
complex crime of kidnapping and serious
illegal detention with frustrated homicide.
Homicide as a component of special
complex
crime
must
be
at
the
consummated stage. In this situation, the
crime committed is complex crime of
kidnapping and serious illegal detention
with frustrated murder (See: People vs.
Roxas, GR No. 172604, August 17, 2010,
Justice Peralta)
COMPLEX CRIME
Article 70 provides that the

maximum duration of the convicts
sentence shall not be more than threefold
32 | P a g e
There are two kinds of complex

crimes. The first is known as compound

crime, or when a single act constitutes two
or more grave or less grave felonies. The
second is known as complex crime proper,
or when an offense is a necessary means for
committing the other (People vs. Rebucan,
G.R. No. 182551, July 27, 2011).The
underlying philosophy of complex crimes in
the Revised Penal Code, which follows the
pro reo principle, is intended to favor the
accused by imposing a single penalty
irrespective of the crimes committed. The
rationale being, that the accused who
commits two crimes with single criminal
impulse demonstrates lesser perversity
than when the crimes are committed by
different
acts
and
several
criminal
resolutions (People vs. Gaffud, Jr., G.R. No.
168050, September 19, 2008)
COMPLEX
CRIME
AND
COMPOSITE CRIME - A composite crime,
also known as a special complex crime, is
composed of two or more crimes that the
law
treats
as
a
single indivisible and unique offense
for
being the product of a single criminal
impulse. It is a specific crime with a specific
penalty provided by law. The distinctions
between a composite crime, on the one
hand, and a complex or compound crime
under Article 48 are as follows: (1) In a
composite crime, the composition of the
offenses is fixed by law; 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; (2) For a composite
crime, the penalty for the specified
combination of crimes is specific; for a
complex or compound crime, the penalty is
that corresponding to the most serious
offense, to be imposed in the maximum
period; and (3) A light felony that
accompanies
a
composite
crime
is
absorbed; a light felony that accompanies
the commission of a complex or compound
crime may be the subject of a separate
information (People vs. Villaflores, G.R.
No. 184926, April 11, 2012).
COMPOUND CRIME
The single act of pitching or rolling
the hand grenade on the floor of the
gymnasium which resulted in the death of
one victim and injuries to other victims
constituted a complex crime under Article
48 of RPC which states that when a single
act constitutes two or more grave or less
grave felonies, the penalty for the most
serious crime shall be imposed, the same to
be applied in its maximum period (People
vs. Mores, GR No. 189846, June 26, 2013).
X was charged with complex crime
with murder and attempted murder. The
33 | P a g e
information alleges that the accused shot

the victim, but it does not allege that he did
so several times. However, the evidence
show that accused shot her and her
father several times. Can X be convicted of
separate crimes of murder and attempted
murder or complex crime? Answer: On the
basis of evidence, X committed separate
crimes of murder and attempted murder.
Several shootings rule out the application of
the concept of complex crime. However,
evidence does not conform to the
Information, which contains no allegation
accused shot the victims several times. In
the absence of a clear statement of several
shootings in the Information, the accused
may be convicted only of the complex crime
of murder with attempted murder. After all,
the concept of complex crimes is
intended to favor the accused by imposing a
single penalty irrespective of the number of
crimes committed. Information merely
states that accused shot the victims. This is
a compound crime since murder and
attempted murder was produced by a single
act of shooting. To rule that the accused
should be convicted of two separate
offenses of murder and attempted murder
pursuant to the evidence presented but
contrary to the allegations in the
Information is to violate the right of the
accused to be informed of the nature and
cause of the accusation against him (People
vs. Bernardo, GR No. 198789, June 03,
2013).
DELICTO 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).
a. Single occassion - In People vs.
Tumlos, G.R. No. 46428, April 13, 1939,
En Banc - The theft of the thirteen cows
owned by six owners involved thirteen (13)
acts of taking. However, the acts of taking
took place at the same time and in the
same
place;
consequently,
accused
performed but one act. The intention was
likewise one, namely, to take for the
purpose of appropriating or selling the
thirteen cows which he found grazing in
the same place. The fact that eight of said
cows pertained to one owner and five to
another does not make him criminally
liable for as many crimes as there are
owners, for the reason that in such case
neither the intention nor the criminal act
is susceptible of division.

X
as punong
barangay was
angered when he discovered a tap from the
main line of the public water tank. On
separate occasions, X threatened to kill
and crack the skulls of A, B, and C,
who suspected to be responsible for the
tapping of water line. There is no continued
crime since the three crimes of grave threat
were not committed under a single criminal
impulse. Xs intent to threaten A, B,
and C with bodily harm arose only when
he chanced upon each of his victims.
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). In People
vs. Tumlos, G.R. No. 46428, April 13, 1939,
En Banc - The theft of the thirteen cows
owned by six owners involved thirteen (13)
acts of taking. However, the acts of taking
took place at the same time and in the
same
place;
consequently,
accused
performed but one act. The intention was
likewise one, namely, to take for the
purpose of appropriating or selling the
thirteen cows which he found grazing in the
same place. The fact that eight of said cows
pertained to one owner and five to another
does not make him criminally liable for as
many crimes as there are owners, for the
reason that in such case neither the
intention nor the criminal act is susceptible
of division.
In People vs. Aaron, G.R. NOS.
136300-02, September 24, 2002 - The
accused inserted his penis into the victims
vagina; he then withdrew it and ordered the
latter to lie down on the floor and, for the
second time, he inserted again his penis
into the victims vagina; the accused,
thereafter, stood up and commanded the
victim to lie near the headboard of the
makeshift bed and, for the third time, he
inserted again his penis into the victims
vagina and continued making pumping
motions. Accused is convicted of only
one count
of
rape. Accused
thrice
succeeded in inserting his penis into the
private part of victim. However, the three
penetrations
occurred
during
one
continuing act of rape in which the accused
obviously motivated by a single criminal
intent. Accused decided to commit those
separate and distinct acts of sexual assault
merely because of his lustful desire to
change positions inside the room where the
crime was committed.
In People vs. Lucena, GR No.
190632, February 26, 2014 - Accused
thrice succeeded in inserting his penis into
the private part of victim. The three (3)
penetrations occurred one after the other at
an interval of five (5) minutes wherein
the accused would rest after satiating his
34 | P a g e
lust upon his victim and, after he has

regained his strength, he would again rape
the victim. When the accused decided to
commit those separate and distinct acts of
sexual assault upon victim, he was not
motivated by a single impulse, but rather
by several criminal intents. Hence, his
conviction for three (3) counts of rape is
indubitable.
In People vs. Crisostomo, GR No.
196435, January 29, 2014 Accused on
the same occasion inserted a lit cigarette
stick into genital orifice of victim (6 years of
age) and her anal orifice, and had sexual
intercourse with her. He is guilt for two
counts of rape by sexual assault and rape
through sexual intercourse.
b. General plan - In People vs.
Dela Cruz, G.R. No. L-1745, May 23, 1950,
it was held that ransacking several houses
located within the vicinity of a sugar mill
while two of the bandits guarded the
victims with guns leveled at them is a
continued crime of robbery. Several acts of
robbery were made pursuant to general
plan to despoil all those in the said place,
which is an indicative of a single criminal
design.
Accused intended only to rob one
place; and that is the Energex gasoline
station. That they did; and in the process,
also took away by force the money and
valuables of the employees working in said
gasoline station. Clearly inferred from these
circumstances are the series of acts which
were borne from one criminal resolution. A
continuing offense is a continuous,
unlawful act or series of acts set on foot by
a single impulse and operated by an
unintermittent force, however long a time it
may occupy. The perpetrated acts were not
entirely distinct and unconnected from one
another. Thus, there is only single offense
or crime (People vs. De Leon, GR No.
c. Foreknowledge doctrine - In
Gamboa vs. CA, G.R. No. L-41054,
November 28, 1975 - Accused cannot be
held to have entertained continuously the
same criminal intent in making the first
abstraction on October 2, 1972 for the
subsequent abstractions on the following
days and months until December 30,
1972, for the simple reason that he was
not possessed of any fore-knowledge of any
deposit by any customer on any day or
occasion and which would pass on to his
possession and control. At most, his intent
to misappropriate may arise only when he
comes in possession of the deposits on
each business day but not in future, since
petitioner company operates only on a
day-to-day transaction. As a result, there

could be as many acts of misappropriation
as there are times the private respondent
abstracted and/or diverted the deposits to
his own personal use and benefit (People
vs. Dichupa, G.R. No. L-16943, October
28, 1961).
DOCTRINE OF ABSORPTION Crime is absorbed if it is a mere incident
in the commission of another crime. In the
case of U.S vs. Sevilla (1 Phil. 143), the
accused, who struck the offended parties
while simultaneously threatening to kill
them if they would not return him the
jewelry they have lost, was held liable for
slight physical injuries. The threat was
considered as part of the assault. In People
vs. Yebra (109 Phil. 613), it was held that
defamatory statement uttered in the
course of committing the crime of threat is
not a separate crime. The defamation was
just a part of the crime of threat. The letter
containing the libelous remarks is more
threatening than libelous; the intent to
threaten is the principal aim and object of
the letter. The libelous remarks are merely
preparatory remarks culminating in the
final threat.
What is the effect of the elimination
of the overt acts of violence in Article 135
by RA No. 9668? In People vs. Hernandez,
G.R. No. L-6025, July 18, 1956 The
Supreme Court justified the doctrine of
absorption in rebellion since murder,
robbery, and arson are just a part of the
engaging in war against the forces of the
government", "committing serious violence",
and destroying property in Article 135.
However, RA No. 6968 eliminated the
phrases "engaging in war against the forces
of the government", "committing serious
violence" and destroying property in
Article 135. According to Florenz Regalado,
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 rebellion in
Article 134. Under this principle of
subsumption, engaging in combat against
the forces of the Government, destroying
property or committing serious violence is an
essential ingredient of rebellion.
Senator Juan Ponce Enrile was
charged for rebellion under the Revised
Penal Code and obstruction of justice under
PD No. 1829. The obstruction of justice
case is based on the allegation that Enrile
entertained
and
accommodated
Col.
Gregorio Gringo Honasan, fugitive from
justice, by giving him food and comfort on
December 1, 1989 in his house. The
rebellion case is based on the alleged fact
that fugitive Col. Honasan and some 100rebel soldiers attended the mass and
birthday party held at the residence of
35 | P a g e
Enrile in the evening of December 1, 1989.

It was held that the theory of absorption in
rebellion cases must not confine itself to
common crimes but also to offenses under
special laws, which are perpetrated in
furtherance of the political offense. Hence,
rebellion absorbs obstruction of justice
(Enrile vs. Amin, G.R. No. 93335,
MULTIPLE DEATHS
SINGLE ACT RULE - If there is
more than one death resulting from
different acts there is no compound crime
of multiple homicides or murder. Article 48
speaks of a single act. In People vs. Toling,
G.R. No. L-27097, January 17, 1975 - Twin
brothers, who ran amok like juramentados
in a passenger train, and killed their eight
co-passengers, were held liable for eight (8)
murders and one attempted murder. The
conduct of the twins evinced conspiracy
and community of design. The eight killings
and the attempted murder were perpetrated
by means of different acts. Hence, they
cannot be regarded as constituting a
complex crime under Article 48 of the
Revised Penal Code, which refers to cases
where "a single act constitutes two or more
grave felonies, of, when an offense is a
necessary means for committing the other.
In People vs. Punzalan G .R. No.
199892, December 1, 2001 - Appellant was
animated by a single purpose, to kill the
navy personnel, and committed a single act
of stepping on the accelerator, swerving to
the right side of the road ramming through
the navy personnel, causing the death of
two persons and, at the same time,
constituting an attempt to kill others. The
multiple murders and attempted murder.
SINGLE IMPULSE RULE Several
acts committed by several offenders with one
criminal impulse resulting in several deaths
constitute one crime: the compound crime of
multiple homicides or murders. In People vs.
Lawas, L-7618-20, June 30, 1955 Members of the Home Guard, upon order of
their leader, Lawas, simultaneously and
successively fired at several victims. After a
short time, the firing stopped immediately
when Lawas ordered his men to cease fire.
As a result of the firing, fifty (50) persons
died. It was held that the evidence
positively shows that the killing was the
result of a single impulse, which was
induced by the order of the leader to fire,
and continued with the intention to comply
therewith, as the firing stopped as soon as
the leader gave the order to that effect.
There was no intent on the part of the
accused either to fire at each and every of
the victims as separately and distinctly

from each other. If the act
complained of resulted from
criminal impulse, it constitutes
offense - compound crime of
homicides.
or acts
a single
a single
multiple
COLLECTIVE
RESPONSIBILITY
RULE - Under the Lawas principle, if
accused fired their guns killing several
victims pursuant to a single impulse, they
shall be held liable for continued crime of
murder. The Lawas principle should only be
applied in a case where (1) there is no
conspiracy (People vs. Hon. Pineda, G.R.
No. L-26222, July 21, 1967) and (2) it is
impossible to ascertain the number of
deaths caused by each accused (People vs.
Tabaco, G.R. No. 100382-100385, March
19, 1997). In conspiracy, each conspirator
is not only liable for deaths attributable to
him but also for deaths caused by others
because in conspiracy the act of one is the
act of all. 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).
In People vs. Nelmida, G.R. No.
184500. September 11, 2012 - Significantly,
there was no conspiracy in Lawas case.
However, the Lawas doctrine is more of an
exception than the general rule. With the
presence of conspiracy in the case at
bench, appellants had assumed joint
criminal responsibility the act of one is
the act of all. The ascertainment of who
among them actually hit, killed and/or
caused injury to the victims already
becomes
immaterial.
Collective
responsibility
replaced
individual
responsibility.
The
Lawas
doctrine,
premised
on
the
impossibility
of
determining who killed whom, cannot be
applied.
In Lawas, this Court was merely
forced to apply Article 48 of RPC because of
the impossibility of ascertaining the
number of persons killed by each accused.
Since conspiracy was not proven therein,
joint criminal responsibility could not be
attributed to the accused. Each accused
could not be held liable for separate crimes
because of lack of clear evidence showing
the number of persons actually killed by
each of them.
In conspiracy, the act of one is the
act of all. It is as though each one
performed the act of each one of the
conspirators. Each one is criminally
responsible for each one of the deaths and
injuries of the several victims. The severalty
of the acts prevents the application of
Article 48. The applicability of Article 48
36 | P a g e
depends upon the singularity of the act,

thus the definitional phrase "a single act
constitutes two or more grave or less grave
felonies." To apply the first half of Article
48, there must be singularity of criminal
act; singularity of criminal impulse is not
written into the law.
SINGLE PURPOSE RULE - In
People vs. Abella, 93 SCRA 25, the Lawas
principle was applied despite the presence
of conspiracy. In the said case, sixteen
prisoners, who are members of the OXO
gang, were able to break into the cell of
Sigue-Sigue gang and killed fourteen (14)
inmates. All accused were convicted for a
compound crime. It was held: Where a
conspiracy animates several persons with a
single purpose, their individual acts done in
pursuance of that purpose are looked upon
as a single act, the act of execution, giving
rise to a complex offense. Various acts
committed under one criminal impulse may
constitute a single complex offense. Basis The single purpose rule was actually
adopted in consideration of the plight of the
prisoners. Requisites -There are two
requisites to apply the Abella principle: (1)
there must be a conspiracy, which
animates several persons to commit crimes
under a single criminal purpose; and (2) the
offenders committed crimes in prison
against their fellow prisoners (People vs.
Pincalin, et al., G.R. No. L-38755, January
22, 1981).
In People vs. Nelmida, G.R. No.
184500. September 11, 2012 - The
application of the Abella doctrine, has
already been clarified in Pincalin, thus:
where several killings on the same occasion
were perpetrated, but not involving
prisoners, a different rule may be applied,
that is to say, the killings would be treated
as separate offenses. If the killings did not
involve prisoners or it was not a case of
prisoners killing fellow prisoners, Abella
would not apply.
MULTIPLE KIDDNAPPINGS
In People v Tadah, G.R. No. 186226,
February 1, 2012 (5 victims)- Since the
prosecution
adduced
proof
beyond
reasonable doubt that the accused
conspired to kidnap the victims for ransom,
and kidnapped and illegally detained them
until they were released by the accused
after the latter received the P2,000,000.00
ransom xxx
Appellant Yusop Tadah is
found guilty beyond reasonable doubt of 5
counts of kidnapping.
NOVATION
The novation theory may perhaps
apply prior to the filing of the criminal

information in court by the state
prosecutors because up to that time the
original trust relation may be converted by
the parties into an ordinary creditor-debtor
situation, thereby placing the complainant
in estoppel to insist on the original trust.
But after the justice authorities have taken
cognizance of the crime and instituted
action in court, the offended party may no
longer divest the prosecution of its power to
exact the criminal liability, as distinguished
from the civil. The crime being an offense
against the state, only the latter can
renounce it (Degaos vs. People, GR No.
162826, October 14, 2013).
It may be observed in this regard
that novation is not one of the means
recognized by the Penal Code whereby
criminal liability can be extinguished;
hence, the role of novation may only be to
either prevent the rise of criminal liability or
to cast doubt on the true nature of the
original basic transaction, whether or not it
was such that its breach would not give rise
to penal responsibility, as when money
loaned is made to appear as a deposit, or
other similar disguise is resorted to
(Degaos vs. People, GR No. 162826,
October 14, 2013).
Although the novation of a contract
of agency to make it one of sale may relieve
an offender from an incipient criminal
liability, that did not happen here, for the
partial payments and the proposal to pay
the balance the accused made during
the barangay proceedings were not at all
incompatible with Degaos liability under
the agency that had already attached.
Rather than converting the agency to sale,
therefore, he even thereby confirmed his
liability as the sales agent of the
complainants. The acceptance of partial
payments, without further change in the
original relation between the complainant
and the accused, cannot produce novation.
For the latter to exist, there must be proof
of intent to extinguish the original
relationship, and such intent cannot be
inferred from the mere acceptance of
payments on account of what is totally due.
Much less can it be said that the
acceptance of partial satisfaction can effect
the nullification of a criminal liability that is
fully matured, and already in the process of
enforcement. Thus, this Court has ruled
that the offended partys acceptance of a
promissory note for all or part of the
amount misapplied does not obliterate the
criminal offense (Degaos vs. People, GR
No. 162826, October 14, 2013).
DEATH OF THE ACCUSED
Novation can only be used as a
defense in a crime where one of its elements
37 | P a g e
is the existence of contractual relationship

between the offender and the victim. Defense
of novation is applicable to estafa through
misappropriation because the contractual
trust relationship between the parties can
be validly novated or converted by the
parties into an ordinary creditor-debtor
situation, thereby placing the complainant
in estoppel to insist on the original trust
(People vs. Nery, G.R. No. L-19567,
February 5, 1964, En Banc). Novation
cannot be used as a defense in case of theft
or estafa through falsification of document.
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).
In People v. Bayotas, the Court laid
down the rules in case the accused dies
prior to final judgment:
1. Death of the accused pending
appeal of his conviction extinguishes his
criminal liability as well as the civil liability
based solely thereon. As opined by Justice
Regalado, in this regard, the death of the
accused prior to final judgment terminates
his criminal liability and only the civil
liability directly arising from and based
solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore.
2. Corollarily, the claim for civil
liability survives notwithstanding the death
of accused, if the same may also be
predicated on a source of obligation other
than delict. Article 1157 of the Civil Code
enumerates
these other sources
of
obligation from which the civil liability may
arise as a result of the same act or
omission: law; contracts; quasi-contracts;
quasi-delicts;
3. Where the civil liability survives,
as explained in Number 2 above, an action
for recovery therefor may be pursued but
only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the
1985 Rules on Criminal Procedure as
amended. This separate civil action may be
enforced
either
against
the
executor/administrator or the estate of the
accused, depending on the source of
obligation upon which the same is based as
explained above.
4. Finally, the private offended party
need not fear a forfeiture of his right to file
this separate civil action by prescription, in
cases where during the prosecution of the

criminal action and prior to its extinction,
the
private-offended
party
instituted
together therewith the civil action. In such
case, the statute of limitations on the civil
liability is deemed interrupted during the
pendency of the criminal case, conformably
with provisions of Article 1155 of the Civil
Code, that should thereby avoid any
apprehension on a possible privation of
right by prescription (People vs. Amistoso,
GR No. 201447, August 28, 2013)
PRESCRIPTION
The crime of falsification of a public
document involving a deed of sale which
was registered with the Registry of Deeds,
the rule on constructive notice can be
applied in the construction of Article 91.
Hence, the prescriptive period of the crime
shall have to be reckoned from the time
the notarized deed of sale was recorded in
the Registry of Deeds (People vs. Reyes,
G.R. No. 74226, July 27, 1989).
Constructive notice rule is not applicable
to registration of bigamous marriage in the
Office of the Civil Registrar. Furthermore,
P.D. 1529, which governed registration of
document
involving
real
property,
specifically
provides
the
rule
on
constructive notice. On the other hand,
Act No. 3753 or the Family Code, which
governed registration of marriage do not
provide rule on constructive notice
(Sermonia vs. Court of Appeals, G.R. No.
109454, June 14, 1994); hence the period
of prescription commences to run on the
date of actual discovery of the bigamous
marriage.
COMMENCEMENT - 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 crime was committed at
the time the accused falsely testified in
court. However, the period of prescription
for false testimony 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, the 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 since the offender can still
38 | P a g e
avert criminal prosecution by satisfying

the amount of the check or making
arrangement for its payment within five
day grace period.
Moreover, the
running
of
prescription for crime punishable under
special law shall be interrupted upon filing
of complaint with prosecutor office for
preliminary investigation. It would be
absurd to consider the prescriptive period
for crime under BP Blg. 22 as already
running even prior to the expiration of the
grace period despite the fact that the
complainant
could
not
cause
its
interruption by filing a complaint for
preliminary investigation since it is not yet
actionable.
In People vs. Pangilinan, G.R. No.
152662, June 13, 2012 - This Court
reckons the commencement of the period of
prescription for violations of BP Blg. 22
imputed to accused sometime in the latter
part of 1995, as it was within this period
that the accused was notified by the private
complainant of the fact of dishonor of the
subject checks and, the five (5) days grace
period granted by law had elapsed. The
private complainant then had, pursuant to
Act 3326, four years there from or until the
latter part of 1999 to file her complaint or
information against the petitioner before
the proper court.
INTERRUPTION
OF
PRESCRIPTION - There is no more
distinction between cases under the RPC
and those covered by special laws with
respect to the interruption of the period of
prescription (People vs. Pangilinan, G.R.
No. 152662, June 13, 2012). Under Article
91 of the Revised Penal Code, the running
of the period of prescription of offense
shall be interrupted by the filing of the
complaint or information. The text of
Article 91 did not distinguish whether the
complaint is filed in the court for
preliminary. Hence, the filing of the
complaint with the Fiscals Office also
suspends the running of the prescriptive
period of a criminal offense (Francisco and
Bernardino vs. CA, G.R. No. L-45674, May
30, 1983). Under Act No. 3326, the
running of the prescription of offense
punishable under special law or ordinance
shall be interrupted when judicial
proceedings
for
investigation
and
punishment are instituted against the
guilty person. The proceeding is described
as judicial since when Act No. 3326 was
passed on December 4, 1926, preliminary
investigation of criminal offenses was
conducted by justices of the peace.
Considering that preliminary investigation
in criminal case for purposes of
prosecution has become the exclusive

function of the executive branch, the term
proceedings should now be understood
either executive or judicial in character:
executive when it involves the investigation
phase and judicial when it refers to the
trial
and
judgment
stage.
Hence,
institution
of
proceeding,
whether
executive or judicial, interrupts the
running
of
prescriptive
period.
Investigations conducted by the Securities
and Exchange Commission for violations of
the Revised Securities Act and the
Securities Regulations Code effectively
interrupts the prescription period because
it is equivalent to the preliminary
investigation conducted by the DOJ in
criminal
cases
(SEC
vs.
Interport
Resources Corporation, G.R. No. 135808,
October 6, 2008, the Supreme Court En
Banc). Commencement of the proceedings
for the prosecution of the accused before
the Office of the City Prosecutor effectively
interrupted the prescriptive period for the
offenses they had been charged under BP
Blg. 22 (Panaguiton vs. Department of
Justice, G.R. No. 167571, November 25,
2008). To rule otherwise would deprive the
injured party of the right to obtain
vindication on account of delays that are
not under his control (People vs. Olarte,
G.R. No. L-22465, 28 February 1967).
Aggrieved parties, especially those who do
not sleep on their rights and actively
pursue their causes, should not be allowed
to suffer unnecessarily further simply
because of circumstances beyond their
control, like the accuseds delaying tactics
or the delay and inefficiency of the
investigating agencies (Panaguiton vs.
Department of Justice, supra).
MARRIAGE IN RAPE
Marriage between the offended party
and the offender in seduction, abduction,
acts of lasciviousness extinguishes the
criminal liability of the latter and his coprincipals, accomplice and accessories
(Articles 89 and 344 of RPC). But marriage
between the offended part and offender in
rape will only extinguishes criminal liability
of the latter. Article 266-C did not expressly
made applicable the extinction of criminal
action and penalty in rape case by reason of
marriage to co-principals, accomplice and
accessories.
PROBATION
Probation distinguished from parole
and pardon (1) Grant of probation is
judicial while that of parole and pardon is
executive. (2) Probation and parole are
suspension sentence while pardon is
remission of penalty. (3) Offender can only
apply for probation within the period of
perfecting an appeal; offender is eligible for
39 | P a g e
pardon after conviction by final judgment;

offender is eligible for parole after serving
the minimum of the indeterminate penalty.
(4) Offender, who was sentenced to suffer a
penalty of more than 6 years of
imprisonment, is disqualified to apply for
probation. Offender, who was sentence to
suffer reclusion perpetua or death penalty,
is not qualified for parole. However, the
President can pardon offender even if the
penalty imposed upon him is reclusion
perpetua or death penalty.
a. Mutual exclusive remedies Probation is not a right but a mere
privilege, an act of grace and clemency
conferred by the State, and may be granted
by the court to a deserving defendant.
Accordingly, the grant of probation rests
solely upon the discretion of the court. It is
to be exercised primarily for the benefit of
organized society, and only incidentally for
the benefit of the accused (Almero vs.
People, GR No. 188191, March 12, 2014).
Probation is a special privilege
granted by the state to a penitent qualified
offender. It essentially rejects appeals and
encourages an otherwise eligible convict to
immediately admit his liability and save the
state of time, effort and expenses to jettison
an appeal. The law expressly requires that
an accused must not have appealed his
conviction before he can avail of probation.
This outlaws the element of speculation on
the part of the accused to wager on the
result of his appeal that when his
conviction is finally affirmed on appeal he
now applies for probation as an escape
hatch thus rendering nugatory the
appellate
court's
affirmance
of
his
conviction (Almero vs. People, GR No.
188191, March 12, 2014).
Aside from the goals of according
expediency and liberality to the accused,
the rationale for the treatment of appeal
and probation as mutually exclusive
remedies is that they rest on diametrically
opposed legal positions. An accused
applying for probation is deemed to have
accepted the judgment. The application for
probation is an admission of guilt on the
part of an accused for the crime which led
to the judgment of conviction. This was the
reason why the Probation Law was
amended: precisely to put a stop to the
practice of appealing from judgments of
conviction even if the sentence is
probationable for the purpose of securing
an acquittal and applying for the probation
only if the accused fails in his bid (Almero
vs. People, GR No. 188191, March 12,
2014).
While accused did not file an appeal
before applying for probation, he assailed

the validity of the conviction in the guise of
a petition supposedly assailing the denial of
probation. In so doing, he attempted to
circumvent P.D. No. 968, as amended by
P.D. 1990, which seeks to make appeal and
probation mutually exclusive remedies
(Almero vs. People, GR No. 188191, March
12, 2014).
b. Non-probationable offense The accused, who was convicted by the
lower court of a non-probationable offense
(frustrated homicide), but on appeal was
found guilty of a probationable offense
(attempted homicide), may apply for
probation upon remand of the case to the
RTC because of the following reasons: (1)
The Probation Law never intended to deny
an accused his right to probation through
no fault of his. The underlying philosophy
of probation is one of liberality towards the
accused. Such philosophy is not served by
a harsh and stringent interpretation of the
statutory provisions; (2) If the accused will
not be allowed to apply for probation, he
will be made to pay for the trial courts
erroneous judgment with the forfeiture of
his right to apply for probation; (3) While it
is true that probation is a mere privilege,
the accused has the right to apply for that
privilege; (4) It is true that under the
probation law the accused who appeals
"from the judgment of conviction" is
disqualified from availing himself of the
benefits of probation. But, as it happens,
two judgments of conviction have been
meted out to accused: one, a conviction for
frustrated homicide by the regional trial
court, now set aside; and, two, a
conviction for attempted homicide by the
Supreme Court (Colinares vs. People, G.R.
No. 182748, December 13, 2011).
c.
Right
of
possessor
of
dangerous drugs to apply for probation The rule under Section 24 of RA No. 9165,
which disqualifies drug traffickers and
pushers for applying for probations, does
not extend to possessor of dangerous
drugs. In Padua vs. People, G.R. No.
168546, July 23, 2008, it was held that:
The law considers the users and
possessors of illegal drugs as victims while
the drug traffickers and pushers as
predators. Hence, while drug traffickers
and pushers, like Padua, are categorically
disqualified from availing the law on
probation, youthful drug dependents,
users and possessors alike, are given the
chance to mend their ways.
d. Right of child to apply for
probation despite appeal - Section 4 of
PD No. 968 provides: Application for
probation must be filed within the period of
perfecting an appeal and no application for
probation shall be entertained or granted if
40 | P a g e
the defendant has perfected the appeal from

the judgment of conviction. However, RA
No. 9344 has expressly amended Section 4
of PD No. 968 and provides that a child in
conflict with the law can apply for
probation at any time. Section 42 of RA
No. 9344 provides: The court may, after it
shall have convicted and sentenced a child
in conflict with the law, and upon
application at any time, place the child on
probation in lie of service of his/her
sentence taking into account the best
interest to the child. For this purpose,
Section 4 of Presidential Degree No. 968,
otherwise known as the Probation Law of
1976,
is
hereby
amended
accordingly. The phrase at any time
mentioned in Section 42 means the child
in conflict with the law may file application
for probation even beyond the period of
perfecting an appeal and even if the child
has perfected the appeal from the
judgment of conviction.
SUSPENDED SENTENCE OF CHILD IN
CONFLICT WITH THE LAW
Persons who have been convicted
and are serving sentence at the time of the
effectivity of RA No. 9344 (Juvenile Justice
and Welfare Act), and who were below the
age of eighteen (18) years at the time of the
commission of the offense for which they
were convicted and are serving sentence,
shall likewise benefit from the retroactive
application of this law. They shall be
entitled
to
appropriate
dispositions
provided under this Act and their sentences
shall be adjusted accordingly. They shall be
immediately released if they are so qualified
under this Act or other applicable law
(Section 68 of RA No. 9344; People vs.
Monticalvo, G.R. No. 193507, January 30,
2013).
While Section 38 of RA 9344
provides that suspension of sentence can
still be applied even if the child in conflict
with the law is already 18 years of age or
more at the time of the pronouncement of
his/her guilt, Section 40 of the same law
limits the said suspension of sentence until
the child reaches the maximum age of
21. Hence, the child in conflict with the law,
who reached 21 years, cannot avail of
privilege
of
suspension
of
sentence. However, 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 (People vs.
Mantalba, G.R. No. 186227, July 20, 2011,
Justice Peralta; People vs. Monticalvo, G.R.
No. 193507, January 30, 2013).

Under Section 38 of RA No. 9344,
instead of pronouncing the judgment of
conviction, the court shall place the child in
conflict with the law under suspended
sentence, without need of application even
if he is already 18 of age or more at that
time. However, under Section 40, the
sentence shall be suspended until the child
reaches
the
maximum age
of 21
years. Hence, once the child in conflict with
the law has reached 21 years of age, or
over, the application of Sections 38 and 40
is moot and academic. But he even if
already over 21 years old at the time of
conviction, may still avail of the benefits of
being confined in an agricultural camp and
other training facilities instead of a regular
penal institution in accordance with Section
51 (People vs. Salcedo, GR No. 186523,
UNLAWFUL ARREST AND ARBITRARY
DETENTION
In unlawful arrest, the private
individual or public officer in its private
capacity arrests or detains the victim
without reasonable ground or legal
authority for purpose of delivering him to
the proper judicial authority. In arbitrary
detention, the public officer, who has
authority to make arrest, detains the victim
without legal grounds (People vs. Bringas
G.R. No. 189093, April 23, 2010) for the
purpose of: (1) Delivering him to judicial
authority (U.S. us. Gellada, 15 Phil. 120);
(2) Conducting criminal investigation
(People vs. Oliva, 95 Phil. 962; U.S. vs.
Agravante, G.R. No. 3947, January 28,
1908); or (3) Determining if he committed or
is committing a crime [U.S. vs. Hawchaw,
G.R. No. L-6909, February 20, 1912].
Arbitrary detention is a crime
against fundamental law of the law or the
Constitution. A public officer, who is vested
with the authority to detain or to order the
detention of a person accused of a crime, is
acting in behalf of the State in arresting or
detaining a person. If such public officer
detained a person in violation of his
constitutional right against unreasonable
seizure (or not in accordance with Section
5, Rule 113 of the Revised Rules of
Criminal Procedure), the crime committed
is arbitrary detention. Unlawful arrest is a
crime against personal liberty and security.
A public officer, who is not vested with the
authority to detain or to order the detention
of a person (e.g. stenographer, researcher
or municipal treasurer), is not acting in
behalf of the State in making a warrantless
arrest. Such public officer acting in his
private capacity (or a private individual)
could not violate the Constitution (People vs
Marti, G.R. No. 81561, January 18,1991);
hence, if he arrests or detains a person not
41 | P a g e
in accordance with Section 5, Rule 113 of

the Revised Rules of Criminal Procedure,
the crime committed is unlawful arrest.
The essence of this crime is not violation of
fundamental law of the law but deprivation
of liberty of the victim.
USURPATION OF FUNCTION
Usurpation
of
authority
is
committed by knowingly and falsely
representing himself to be an officer, agent
or representative of any department or
agency of the government or of any foreign
government. Usurpation of function is
committed by performing any act under
pretense of official position pertaining to
any person in authority or public officer of
the government or any foreign government,
or any agency thereof, without being
lawfully entitled to do so (Ruzol vs.
Sandiganbayan, GR Nos. 186739-960, April
17, 2013).
In Ruzol vs. Sandiganbayan, GR
Nos. 186739-960, April 17, 2013 - Accused,
a
mayor
issued
permits
to
transport salvaged
forest
products.
According to prosecution, DENR is the only
government instrumentality that can issue
the permits to transport salvaged forest
products. The prosecution asserted that
accused usurped the official functions that
properly belong to the DENR.
Accused chose to exercise the right
to protect the environment and to share in
this responsibility by exercising his
authority as municipal mayoran act
which was executed with the cooperation of
non-governmental
organizations,
stakeholders, and concerned citizens. His
acts may be invalid but it does necessarily
mean that such mistakes automatically
justify his conviction.
There is no showing that accused
possessed that criminal mind when he in
his capacity as mayor issued the subject
permits. What is clear from the records is
that accused, as municipal mayor, intended
to regulate and monitor salvaged forest
products in order to avert the occurrence of
illegal logging in the area.
Good faith is a defense in criminal
prosecutions for usurpation of official
functions. The requirement of permits to
transport was accuseds decision alone; it
was a result of the collective decision of the
participants during the Multi-Sectoral
Consultative Assembly. If, indeed, accused
intended to usurp the official functions of
the DENR, he would not have asked the
presence of a DENR official who has the
authority and credibility to publicly object
against
accuseds
allegedly
intended

usurpation. Thus, the presence of DENR
official during the Multi-Sectoral Assembly
strengthens accuseds claim of good faith.
The DENR is not the sole
government agency vested with the
authority to issue permits relevant to the
transportation of salvaged forest products,
considering that, pursuant to the general
welfare clause, LGUs may also exercise
such authority.
KNOWINGLY RENDERING UNJUST
JUDGEMENT
To commit the offense of knowingly
rendering an unjust judgment, the offender
must be a judge who is adequately shown
to have rendered an unjust judgment, not
one who merely committed an error of
judgment or taken the unpopular side of a
controversial point of law. The term
knowingly
means
sure
knowledge,
conscious and deliberate intention to do an
injustice. Thus, the complainant must not
only prove beyond reasonable doubt that
the judgment is patently contrary to law or
not supported by the evidence but that it
was also made with deliberate intent to
perpetrate an injustice. Good faith and the
absence of malice, corrupt motives or
improper consideration are
sufficient
defenses that will shield a judge from the
charge of rendering an unjust decision. In
other words, the judge was motivated by
hatred, revenge, greed or some other similar
motive in issuing the judgment. Bad faith
is, therefore, the ground for liability. The
failure of the judge to correctly interpret the
law or to properly appreciate the evidence
presented does not necessarily render him
administratively liable (Re:
Verified
Complaint for Disbarment of AMA LAnd
Inc. against CA Association Justice Bueser
et.al., OCA IPI No. 12-204-CA-J, March 11,
2014).
USURPATION OF JUDICIAL AUTHORITY
Under Article 241 of the Revised
Penal
Code,
the
crime
of
usurpation of judicial authority involves the
following elements: (1) that the offender is
an officer of the executive branch of the
government; and (2) that he assumes
judicial powers, or obstructs the execution
of any order or decision rendered by any
judge within his jurisdiction. These
elements were alleged in the information.
Mayor Irisari was an officer of the executive
branch (Munez vs. Arino, A.M. No. MTJ-94985, February 21, 1995). In usurpation of
judicial function, the accused, who is not a
judge, attempts to perform an act the
authority for which the law has vested only
in a judge (Mioso v. Pamulag, A.M. No. P05-2067,
31
August
2005; Pace
v.
42 | P a g e
Leonardo, A.M. No. P-03-1675, 6 August

2003,). A Provincial Adjudicator, who
rendered judgment in DARAB Case in the
performance of a quasi-judicial function,
closely akin to the function of a judge of a
court of law, could not be held liable under
Article 241 of RPC, therefore, considering
that the acts constitutive of usurpation of
judicial function were lacking herein (Reyes
vs. People, G.R. Nos. 177105-06, August
12, 2010). A clerk of court, who is not an
officer of the executive branch, cannot be
held liable for usurpation of judicial
function. However, a clerk of court, who
usurped judicial prerogative of the judge by
issuing the arrest of an accused in a
criminal case, is administratively liable for
grave misconduct (Albior vs. Auguis, A.M.
No. P-01-1472, June 26, 2003).
MALVERSATION
The essential elements common to
all acts of malversation under Article 217 of
the Revised Penal Code are: (1) That the
offender be a public officer; (2) That he had
the custody or control of funds or property
by reason of the duties of his office; (3) That
he had the custody or control of funds or
property by reason of the duties of his
office; (4) That those funds or property were
public funds or property for which he was
accountable; and (5) That he appropriated,
took, misappropriated or consented, or
through abandonment or negligence,
permitted another person to take them
(Legrama vs. Sandiganbayan, GR No.
178626, June 13, 2012; Justice Peralta).
Accountable
officer
An
accountable public officer is one who has
custody or control of public funds or
property by reason of the duties of his
office. The nature of the duties of the
public officer or employee, the fact that as
part of his duties he received public money
for which he is bound to account and failed
to account for it, is the factor which
determines whether or not malversation is
committed by the accused public officer or
employee. Hence, a school principal of a
public high school may be held guilty of
malversation if he or she is entrusted with
public funds and misappropriates the same
(Torres vs. People, GR No. 175074, August
The municipal mayor initiated the
request for obligation of allotments and
certified and approved the disbursement
vouchers.
The
municipal
accountant
obligated the allotments despite lack of
prior
certification
from
the
budget
officer. Municipal treasurer certified to the
availability of funds and released the money
even without the requisite budget officers
certification. The
signatures
of

beneficiaries, who supposed to have
received the money, were forged. Can the
mayor and accountant be held liable for
malversation even though they are not
accountable officer? Yes. Ordinarily, a
municipalitys mayor and accountant are
not accountable public officers as defined
under the law. However, a public officer
who is not in charge of public funds or
property by virtue of his official position, or
even a private individual, may be liable for
malversation if such public officer or private
individual conspires with an accountable
public officer to commit malversation. In
this case, combined acts of the mayor and
accountant, and treasurer, an accountable
officer,
conspired
to
defraud
the
government (People vs. Pajaro, G.R. Nos.
167860-65, June 17, 2008).
Intentional
and
culpable
malversation Malversation may be
committed either through a positive act of
misappropriation of public funds or
property, or passively through negligence.
To sustain a charge of malversation, there
must either be criminal intent or criminal
negligence, and while the prevailing facts of
a case may not show that deceit attended
the commission of the offense, it will not
preclude the reception of evidence to prove
the
existence
of
negligence
because both aree qually punishable for
malversation (Torres vs. People, GR No.
175074, August 31, 2011, Justice
Peralta)..
Even when the Information charges
intentional malversation, conviction for
malversation through negligence may still
be adjudged if the evidence ultimately
proves the mode of commission of the
offense. Malversation is committed either
intentionally or by negligence. The dolo or
the culpa present in the offense is only a
modality in the perpetration of the felony.
Even if the mode charged differs from mode
proved, the same offense of malversation is
involved and conviction thereof is proper
(Torres vs. People, GR No. 175074, August
Prima
facie
evidence
of
malversation - More importantly, in
malversation
of
public
funds,
the
prosecution is burdened to prove beyond
reasonable doubt, either by direct or
circumstantial evidence, that the public
officer appropriated, misappropriated or
consented, or through abandonment or
negligence, permitted another person to
take public property or public funds under
his custody. Absent such evidence, the
public officer cannot be held criminally
liable for malversation. Mere absence of
funds is not sufficient proof of conversion;
neither is the mere failure of the public
43 | P a g e
officer to turn over the funds at any given

time sufficient to make even the prima
facie case. In fine, conversion must be
proved. However, an accountable officer
may be convicted of malversation even in
the
absence
of
direct
proof
of
misappropriation so long as there is
evidence of shortage in his account which
he is unable to explain (Legrama vs.
Sandiganbayan, GR No. 178626, June 13,
2012; Justice Peralta).
Verily, in the crime of malversation
of public funds, all that is necessary for
conviction is proof that the accountable
officer had received the public funds and
that he failed to account for the said funds
upon demand without offering sufficient
explanation why there was a shortage. In
fine,
petitioners
failure
to
present
competent and credible evidence that would
exculpate
her
and
rebut
the prima
facie presumption of malversation clearly
warranted a verdict of conviction (Legrama
vs. Sandiganbayan, GR No. 178626, June
13, 2012; Justice Peralta).
PARRICIDE
Parricide is committed when: (1) a person is
killed; (2) the deceased is killed by the
accused; and (3) the deceased is the father,
mother, or child, whether legitimate or
illegitimate, or a legitimate other ascendant
or other descendant, or the legitimate
spouse of the accused (People vs. Gamez,
GR No. 202847, October 23, 2013).
MURDER
Murder, the prosecution must prove
that: (1) a person was killed; (2) the accused
killed him; (3) the killing was attended by
any of the qualifying circumstances
mentioned in Article 248; and (4) the killing
is neither parricide nor infanticide (People
vs. Camat, G.R. No. 188612, July 30, 2012
ATTEMPTED MURDER - Accused
opened the door of his vehicle and then
drew a gun and shot victim once, hitting
him just below the left armpit. Victim
immediately ran at the back of the car,
while accused sped away. Is the accused
liable for attempted murder? No. Accused
only shot the victim once and did not hit
any vital part of the latters body. If he
intended to kill him, accused could have
shot the victim multiple times or even ran
him over with the car. When such intent is
lacking but wounds are inflicted upon the
victim, the crime is not attempted murder
but physical injuries only (Pentecoste, Jr.
vs. People, G.R. No. 167766, April 7, 2010).
EXCESSIVE CHASTISEMENT

X tied his son to a coconut tree
and, there after hit on his right eye and
right leg. As a consequence, his son
sustained injuries that would heal in one
week upon medication. Is X liable for
slight physical injuries despite the fact that
his intention in beating his son is merely to
discipline him? Yes. X cannot evade
criminal culpability by the circumstance
that he merely intended to discipline his
son (People vs. Sales, G.R. No. 177218,
October 3, 2011).
vs. People, GR No. 165411, June 18, 2009,

Justice Peralta).
ESTAFA
Answer: No. It must be pointed out

that the law on agency in our jurisdiction
allows the appointment by an agent of a
substitute or sub-agent in the absence of
an express agreement to the contrary
between the agent and the principal. In the
case at bar, the appointment of sub-agent
was not expressly prohibited by A. Neither
does it appear that X was verbally forbidden
by A from passing on the jewelry to another
person. Thus, it cannot be said that X's act
of entrusting the jewelry to Y is
characterized by abuse of confidence
because such an act was not proscribed
and is, in fact, legally sanctioned.
ESTAFA
THROUGH
MISAPPROPRIATION The elements
of estafa under Article 315, par. 1 (b) of the
Revised Penal Code are the following: (a)
that money, goods or other personal
property is received by the offender in trust
or on commission, or for administration, or
under any other obligation involving the
duty to make delivery of or to return the
same; (b) that there be misappropriation or
conversion of such money or property by
the offender, or denial on his part of such
receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of
another; and (d) there is demand by the
offended party to the offender (Tabaniag vs.
People, GR No. 165411, June 18, 2009,
Justice Peralta; Magtira vs. People, G.R.
No. 170964, March 7, 2012). However,
demand is not necessary if there is evidence
of misappropriation.
Misappropriation as an element of
the offense of estafa connotes an act of
using, or disposing of, anothers property as
if it were ones own, or of devoting it to a
purpose or use different from that agreed
upon. Failure to account upon demand for
funds or property held in trust without
offering any satisfactory explanation for the
inability to account is circumstantial
evidence of misappropriation. Demand for
the return of the thing delivered in trust
and the failure of the accused to account
are similarly circumstantial evidence that
the courts can appreciate (Magtira vs.
People, G.R. No. 170964, March 7, 2012).
The essence of estafa under Article
315, par. 1(b) is the appropriation or
conversion of money or property received to
the prejudice of the owner. The words
"convert" and "misappropriate" connote an
act of using or disposing of another's
property as if it were one's own, or of
devoting it to a purpose or use different
from that agreed upon. To misappropriate
for one's own use includes not only
conversion to one's personal advantage, but
also every attempt to dispose of the
property of another without right (Tabaniag
44 | P a g e
X received from A jewelry with

obligation to return the same if unsold or
deliver the proceeds of sale. In the
acknowledgement receipt, X is prohibited
from selling jewelry the jewelry on credits or
giving it for safekeeping. X transferred the
jewelry to Y, a subagent. Y failed to return
the jewelry. Is X liable for estafa through
conversion?
Since properties were given by X to

Y to achieve the very same end for which
they were delivered to her in the first place,
there is no conversion since the same were
not devoted to a purpose or use different
from that agreed upon. Similarly, it cannot
be said that X delivered them to Y "without
right." Aside from the fact that no condition
or limitation was imposed on the mode or
manner by which X was to effect the sale, it
is also consistent with usual practice for
the seller to necessarily part with the
valuables in order to find a buyer and allow
inspection of the items for sale (Tabaniag
Justice Peralta).
Can X be held liable for estafa
through negligence? Answer: No. In estafa,
the profit or gain must be obtained by the
accused personally, through his own acts,
and his mere negligence in permitting
another to take advantage or benefit from
the entrusted chattel cannot constitute
estafa (Tabaniag vs. People, GR No. 165411,
Can X be held liable for estafa on
the basis of conspiracy? Answer: No. If an
agent acted in conspiracy with subagent in
carrying out the actual misappropriation,
then the former would be answerable for
the acts of his co-conspirators. However,
the mere fact that X failed to return the
pieces of jewelry upon demand is not proof
of conspiracy, nor is it proof of
misappropriation or conversion (Tabaniag

Justice
Peralta).
ESTFA THROUGH ISSUANCE OF

BOUNCING CHECK - The essential
elements of estafa through bouncing check:
(1) the accused shall defraud another by
issuing or postdating check in payment of
an obligation contracted at the time the
check is issued; (2) lack or insufficiency of
funds to cover the check; (3) check was
issued
or
postdated
prior
to
or
simultaneously with the parting of money
or property by the payee; and (4) damage to
the payee thereof.
It is the criminal fraud or deceit in
the issuance of a check that is punishable,
not the non-payment of a debt. 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. To be guilty of estafa the
accused must have used the check in order
to defraud the complainant. What the law
punishes is the fraud or deceit, not the
mere issuance of the worthless check.
Accused could not be held guilty
of estafa simply because he had issued the
check used to defraud complainant. The
proof of guilt must still clearly show that it
had been accused as the drawer who had
defrauded complainant by means of the
check. Complainant admitted that it was
another person who received the rice from
him and who delivered the bearer check to
him (People vs. Reyes, GR No. 157943,
In order to constitute estafa under this
statutory provision, the act of postdating or
issuing a check in payment of an obligation
must be the efficient cause of the
defraudation. This means that the offender
must be able to obtain money or property
from the offended party by reason of the
issuance of the check, whether dated or
postdated. In other words, the Prosecution
must show that the person to whom the
check was delivered would not have parted
with his money or property were it not for
the issuance of the check by the offender
(People vs. Reyes, GR No. 157943,
ABUSE OF CONFIDENCE AND
DECEIT
The
offense
of estafa, in
general, is committed either by (a) abuse of
confidence or (b) means of deceit. The acts
constituting estafa committed with abuse of
confidence are enumerated in item (1) of
Article 315 of the Revised Penal Code, as
amended; item (2)
of Article
315
enumerates estafa committed by means of
deceit. Deceit is not an essential requisite
of estafa by abuse of confidence; the breach
of confidence takes the place of fraud or
deceit, which is a usual element in the
45 | P a g e
other estafas (Brokmann vs. People, G.R.

No. 199150, February 6, 2012).
ESTAFA AND OTHER DECEIT What is the difference between estafa
through false representation and other
deceit? The common elements of these two
crimes are: (1) false pretense, fraudulent
act or pretense must be made or executed
prior to or simultaneously with the
commission of the fraud; and (2) as a
result, the offended party suffered damage
or prejudice. It is essential that such false
statement or fraudulent representation
constitutes the very cause or the only
motive for the private complainant to part
with her property. In estafa under Article
315, the false representation is committed
by using fictitious name, or falsely
pretending to possess power, influence,
qualifications, property, credit, agency,
business or imaginary transactions; or by
means of other similar deceits. Following
the principle of ejusdem generis, other
deceit as a means to commit estafa must be
similar to pretending to possess power,
imaginary transaction etc. If the deceit is
not similar to pretending to possess power
or imaginary transaction, the crime
committed is other deceit under Article 318.
In Guinhawa vs. People, G.R. No. 162822
August
25, 2005 ()
- Fraudulent
representation of the seller that the van to
be sold is brand new constitutes other
deceit under Article 318. On the other
hand, in People vs. Rubaton, C.A., 65 O.G.
5048, issue of May 19, 1069, false
representation that accused has a palay by
reason of which the victim parted his
money in consideration of the palay
constitutes estafa under Article 315. Unlike
in the Guinhawa case, the transaction in
Rubaton case is imaginary.
Authority to sell - Primelink
entered into joint venture agreement with
the owner of a certain land to develop a
club. Accused represent to complainant on
October 10, 1996 Primelink will finished
the Club by July 1998. Because of this
representation complainant purchased a
Club share. However, the Club was not
completed because the owner of the
property mortgaged it in violation of their
agreement. The projected was aborted.
Accused is not liable for estafa for such
representation. False pretense of power to
develop the Club resulting in damage to
buyer is estafa. However, the law requires
that the false pretense be used prior to or
simultaneous with the execution of the
fraud, and that is October 10, 1996. In this
case, there is no showing that Primelink
possessed no power (capability) to develop
the Club and that accused knew that the
Club was a bogus project. Primelink is a
legitimate developer. In fact, it has already

released money for the initial funding of the
project. The project was only aborted
because of the problem with the owner of
the land, which occurred after October 10,
1996. However, the false pretense made by
accused that Primelink was authorized to
sell membership shares is estafa. False
pretense of qualification (to sell securities)
is within the contemplation of the provision
on estafa (Lopez vs. People,
GR NO.
199294, July 31, 2013)
SUBSEQUENT FRAUD - Is the
fraudulent act committed by the accused
subsequent to the time the victim parted
his money constitutes estafa? In the
prosecution for this kind of estafa, it is
indispensable that the false pretense or
fraudulent act is committed prior to or
simultaneously with the commission of the
fraud, it being essential that such false
statement or representation constitutes the
very cause or the only motive which
induces the offended party to part with his
money. In the absence of such requisite,
any subsequent act of the accused, however
fraudulent and suspicious it might appear,
cannot serve as basis for prosecution for
estafa (Ambito, vs. People, G. R. No.
127327, Feb. 13, 2009).
REPRESENTATION OF FUTURE
PROFIT - When will a representation of a
future profits or income be considered as
an actionable fraud or estafa? Where one
states that the future profits or income of
an enterprise shall be a certain sum, but he
actually knows that there will be none, or
that they will be substantially less than he
represents, the statements constitute an
actionable fraud where the hearer believes
him and relies on the statement to his
injury. In the present case, it is abundantly
clear that the profits which Elvira and her
co-conspirators
promised
to Elizabeth would not be realized (Joson
vs. People, G. R. No. 178836, July 23,
2008).
OTHER DECEIT- Other deceit
under Article 316 (a) of RPC is committed
by any person who, knowing that the real
property is encumbered, shall dispose of
the same, although such encumbrance be
not recorded. The law was taken from
Article 455 of the Spanish Penal Code.
However, the words "como libre" in the
Spanish Penal Code, which means "free
from encumbrance" do not appear in the
English text of RPC, nonetheless, the same
are deemed incorporated in the RPC. The
gravamen of the crime is the disposition of
legally encumbered real property by the
offender under the express representation
that there is no encumbrance thereon.
Hence, for one to be criminally liable for
estafa under the law, the accused must
46 | P a g e
make an express representation in the

deed of conveyance that the property sold
or disposed of is free from any
encumbrance (Naya vs. Abing, G.R. No.
146770, February 27, 2003, ).
FALSIFICATION
Commercial
document
Commercial documents are, in general,
documents or instruments which are used
by merchants or businessmen to promote
or facilitate trade or credit transactions.
Promissory
notes
facilitate
credit
transactions while a check is a means of
payment used in business in lieu of money
for convenience in business transactions.
A cashiers check necessarily facilitates
bank transactions for it allows the person
whose name and signature appear thereon
to encash the check and withdraw the
amount indicated therein (Tanenggee vs.
People, GR No. 179448, June 26, 2013).
Is intent to cause damage an
element of falsification of public or official
document? No. In falsification of public or
official documents, it is not necessary that
there be present the idea of gain or the
intent to injure a third person because in
the falsification of a public document, what
is punished is the violation of the public
faith and the destruction of the truth as
therein solemnly proclaimed (Regidor, Jr.,
vs. People, G. R. Nos. 166086-92 Feb. 13,
2009).
What is the crime committed if
private document is falsified as a necessary
means to commit or conceal estafa or
malversation?
Under the doctrine of common
element, an element used to complete one
crime cannot be legally re-used to complete
the requisites of a subsequent crime
(Regalado). The common element of estafa
or malversation and falsification is damage
to the victim. Thus, falsification of private
document and estafa cannot co-exist. The
use of damage as an element in falsification
precludes the re-use thereof to complete the
elements of estafa, and vice versa.
Falsification - If the offender
committed falsification of private document
as a means to commit estafa, he is liable for
falsification only. Falsification absorbs
estafa. (See: U.S. vs Chan Tiao, G.R. No.
12609, October 30, 1917).
Estafa or malversation If a person
falsified a private document to conceal
malversation or estafa, the crime is
malversation or estafa only. Falsification of
private document is not committed
because: (a) the use of damage as an
element in estafa precludes the re-use

thereof to complete the elements of
falsification; and (b) the damage to third
person is not caused by the falsity in the
document but by the commission of
estafa(See: People vs. Beng, 40 O.G. 1913).
Note: If falsification of private document
was used as a means to commit estafa, the
former was committed ahead of the latter;
hence, falsification absorbs the element of
damage of estafa. If falsification of private
document was used as a means to conceal
estafa, the latter was committed ahead of
the former; hence, estafa absorbs the
element of damage of falsification.
What is the crime committed if
public, official, or commercial document is
falsified as a necessary means to commit or
conceal estafa or malversation?
Complex crime - Since damage to
third person is not an element of
falsification of public, official or commercial
document, it consummates the very
moment the offender falsifies the document.
If the offender uses the falsified document
to defraud a third person or the
government, estafa or malversation is also
committed.
Estafa
or
malversation
consummates the moment the third person
or government suffers damages. Since
falsification is committed as a necessary
means to commit estafa or malversation,
complex crime under Article 48 is
committed. (See: Ambito, vs. People, G. R.
No. 127327, Feb. 13, 2009; People vs.
Barbas, G.R. No. 41265, July 27, 1934).
Separate crimes - If falsification of
public, official or commercial document is
used as a means to conceal estafa or
malversation, two distinct crimes of estafa
(or malversation) and falsification are
committed. There is nocomplex crime since
falsification is not a necessary means to
commit estafa or malversation since the
latter was already consummated when the
former was committed (See: People vs.
Monteverde, G.R. No. 139610, August 12,
2002).
When the offender commits on a
public, official or commercial document any
of the acts of falsification as a necessary
means to commit another crime like estafa,
theft or malversation, the two crimes form a
complex crime. 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
47 | P a g e
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.
Taken in its entirety, the proven facts show
that petitioner could not have withdrawn
the money without falsifying the questioned
documents.
The
falsification
was,
therefore, a necessary means to commit
estafa, and falsification was already
consummated even before the falsified
documents were used to defraud the bank.
The crime committed is complex crime of
estafa through falsification of commercial
document (Tanenggee vs. People, GR No.
179448, June 26, 2013).
In Patula vs. People, G.R. No.
164457, April 11, 2012 - According to the
theory and proof of the Prosecution,
petitioner misappropriated or converted the
sums paid by her customers, and later
falsified the duplicates of the receipts before
turning such duplicates to her employer to
show that the customers had paid less than
the amounts actually reflected on the
original receipts. Obviously, she committed
the falsification in order to conceal her
misappropriation
or
conversion.
Considering that the falsification was not
an offense separate and distinct from
the estafa charged against her, the
Prosecution could legitimately prove her
acts of falsification as its means of
establishing
her
misappropriation
or
conversion as an essential ingredient of the
crime duly alleged in the information. In
that manner, her right to be informed of the
nature and cause of the accusation against
her was not infringed or denied to her.
THEFT
QUALIFIED THEFT - The elements
of the crime of theft are: (1) that there be
taking of personal property; (2) that said
property belongs to another; (3) that the
taking be done with intent to gain; (4) that
the taking be done without the consent of
the owner; and (5) that the taking be
accomplished without the use of violence
against or intimidation of persons or force
upon things. Theft becomes qualified "if
committed by a domestic servant, or with
grave abuse of confidence, or if the property
stolen is a motor vehicle, mail matter or
large cattle, or consists of coconuts taken
from the premises of a plantation, fish
taken from a fishpond or fishery, or if
property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or
any other calamity, vehicular accident or
civil disturbance (People vs. Bayon, GR No.

ABUSE OF CONFIDENCE - To
warrant the conviction and, hence,
imposition of the penalty for qualified theft,
there must be an allegation in the
information and proof that there existed
between the offended party and the accused
such high degree of confidence]or that the
stolen goods have been entrusted to the
custody or vigilance of the accused. In other
words, where the accused had never been
vested physical access to, or material
possession of, the stolen goods, it may not
be said that he or she exploited such access
or material possession thereby committing
such grave abuse of confidence in taking
the property (Viray vs. People, GR No.
205180, November 11, 2013).
In Zapanta vs. People, G.R. No.
170863, March 20, 2013 - Accused
betrayed the trust and confidence reposed
on him when he, as project manager,
repeatedly took construction materials from
the project site, without the authority and
consent of Engr. Marigondon, the owner of
the construction materials. He is liable for
qualified theft.
Taking committed by accused
cannot be qualified by the breaking of the
door, as it was not alleged in the
Information. Moreover, the same breaking
of the door does not constitute the
qualifying element of grave abuse of
confidence. The very fact that accused
forced open the main door because he
was denied access to complainants house
negates the presence of such confidence in
him by private complainant. Without ready
access to the interior of the house where
the properties were taken, it cannot be said
that complaint had a firm trust on
accused and that the same trust facilitated
taking of the personal properties (Viray vs.
2013).
If the subject matter of a crime
against property was money, identity of the
offended party is material and necessary for
the proper identification of the offense
charged. Since money is generic and has no
earmarks that could properly identify it, the
only way that it (money) could be described
and identified in a complaint is by
connecting it to the offended party or the
individual who was robbed as its owner or
possessor. Thus, the erroneous designation
of the offended party would also be
material, as the subject matter of the
offense could no longer be described with
such particularity as to properly identify
the offense charged (Senador vs. People, GR
No. 201620, March 06, 2013).
48 | P a g e
If the subject matter of a crime

against property is specific or one described
with such particularity as to properly
identify the offense charged, then an
erroneous designation of the offended party
is not material and would not result in the
violation of the accuseds constitutional
right to be informed of the nature and
cause of the accusation against her. Such
error would not result in the acquittal of the
accused (Senador vs. People, GR No.
201620, March 06, 2013).
Accused asserted that the person
named as the offended party in the
Information is not the same person who
made the demand and filed the complaint.
According
to
accused,
the
private
complainant in the Information went by the
name Cynthia Jaime, whereas, during
trial, the private complainant turned out to
be Rita Jaime. Applying the Uba principle,
the case should be dismissed. Is the
argument tenable?
Answer: No. The principle in People
vs. Uba, 106 Phil. 332 is not applicable. In
Uba case, the appellant was charged with
oral defamation, a crime against honor,
wherein 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. On the contrary, in the instant
case, accused was charged with estafa, a
crime against property that does not
absolutely require as indispensable the
proper designation of the name of the
offended party. Rather, what is absolutely
necessary is the correct identification of
the criminal
act
charged
in
the
information. Thus, in case of an error in the
designation of the offended party in crimes
against property, Rule 110, Sec. 12 of the
Rules of Court mandates the correction of
the information, not its dismissal.
In this case, the subject matter of
the offense does not refer to money or any
other generic property. Instead, the
information specified the subject of the
offense as various kinds of jewelry valued
in the total amount of P705,685.00. Thus,
The error in the designation of the offended
party in the information is immaterial and
did not violate accuseds constitutional
right to be informed of the nature and
cause of the accusation against her.
THEFT
THROUGH
MISAPPROPRIATION - Misappropriation of
personal property in possession of the
accused may constitute estafa or theft
depending upon the nature of possession. If
his possession of the property is physical or
de facto, misappropriation thereof is
constitutive of theft. If the possession is

juridical or legal, misappropriation thereof
is estafa through misappropriation.
A travelling sales agent, who failed
to return to his principal the proceeds of
goods he was commissioned or authorized
to sell, is liable for estafa because his
possession is juridical. Under the Civil Code
Article 1914 of the Civil Code, an agent can
even assert, as against his own principal,
an independent, autonomous, right to
retain money or goods received in
consequence of the agency; as when the
principal fails to reimburse him for
advances he has made, and indemnify him
for damages suffered without his fault
(Guzman v. Court of Appeals, 99 Phil. 703).
On the other hand, branch manager of the
company, who misappropriate payments
from customers that he collected and
accepted, is liable for qualified theft.
Because
of
this
employer-employee
relationship, he cannot be considered an
agent of the company and is not covered by
the Civil Code provisions on agency. Money
received by an employee in behalf of his
employer is considered to be only in the
material possession of the employee(People
vs. Mirto, G.R. No. 193479, October 19,
2011).
The receiving teller of a bank, who
misappropriated the money received by him
for the bank, is liable for qualified theft.
The possession of
the
teller
is
the
possession of the bank. Payment by third
persons to the teller is payment to the bank
itself. The teller has no independent right or
title to retain or possess the same as
against the bank (People v. Locson, G.R.
No. L-35681, October 18, 1932). In one
case, a corporate officer received the
property to be utilized in the fabrication of
bending machines in trust from the
corporation and he has absolute option on
how to use them without the participation
of the corporation. Upon demand, the
officer failed to account the property. Since
the corporate officer received the property
in trust with absolute option on how to use
them without the participation of the
corporation, he acquired not only physical
possession but also juridical possession
over the equipment. He is liable for estafa
through misappropriation (Aigle vs. People,
G.R. No. 174181, June 27, 2012).
Driver of jeepney under boundary
arrangement, who did not return the
vehicle to its owner, is liable for
carnapping.In People v. Isaac G.R. No. L7561, April 30, 1955, the rules prohibits
motor vehicle operator from allowing the
use and operation of his equipment by
another person under a fixed rental basis.
In the eye of the law the driver was only an
employee of the owner rather than a lessee.
49 | P a g e
For being an employee, his possession of

the
jeepney
is
physical,
and
misappropriation thereof is qualified theft.
In People vs. Bustinera, G. R. No. 148233,
June 8, 2004, the Supreme Court affirmed
the principle in Isaac case, but found the
accused guilty of carnapping in view of the
passage of RA No. 6539(Anti-Carnapping
Act).
THEFT
OF
INTANGIBLE
PROPERTY - The term "personal property"
in the Revised Penal Code should be
interpreted in the context of the Civil Code.
Consequently, any personal property,
tangible or intangible, corporeal or
incorporeal, capable of appropriation can be
the object of theft. Business may be
appropriated under Bulk Sales Law. Thus,
the
business
of
providing
telecommunication and the telephone
service is a personal property (Laurel vs.
Abrogar, G.R. No. 155076, January 13,
2009,).
The word "take" in the RPC includes
controlling the destination of the property
stolen to deprive the owner of the property,
such as the use of a meter tampering, use
of a device to fraudulently obtain gas, and
the use of a jumper to divert electricity.
Appropriation of forces of nature which are
brought under control by science such as
electrical energy can be achieved by
tampering with any apparatus used for
generating or measuring such forces of
nature, wrongfully redirecting such forces
of nature from such apparatus, or using
any device to fraudulently obtain such
forces of nature (Laurel vs. Abrogar).
A "phreaker" is one who engages in
the act of manipulating phones and illegally
markets telephone services. Phreaking
includes
the
act
of
engaging
in
International Simple Resale (ISR) or the
unauthorized routing and completing of
international long distance calls using
lines, cables, antennae, and/or air wave
frequency and connecting these calls
directly to the local or domestic exchange
facilities of the country where destined
(Laurel vs. Abrogar, G.R. No. 155076,
February 27, 2006 and January 13, 2009).
Can PLDT validly claim that the
long distance calls are its properties
stolen by the phreaker? No. International
long distance calls take the form of
electrical energy. It cannot be said that
such international long distance calls were
personal properties belonging to PLDT since
the latter could not have acquired
ownership over such calls. PLDT merely
encodes, augments, enhances, decodes and
transmits said calls using its complex
communications
infrastructure
and

facilities. PLDT not being the owner of said
telephone calls, then it could not validly
claim that such telephone calls were taken
without its consent (Laurel vs. Abrogar).
Telephone calls belong to the persons
making the calls.
Can phreaker be held criminally
liable for engaging in ISR involving the
telephone facilities of PLDT? Yes. Phreaker
can be held liable for access device fraud
under RA No. 8484 and theft under the
Revised Penal Code.PLDTs business of
providing telecommunication or telephone
service is personal property which can be
the object of theft. While telephone calls are
not properties belonging to PLDT that can
be stolen, it is the use of these
communications facilities without the
consent of PLDT that constitutes the crime
of theft, which is the unlawful taking of the
telephone services and business.The act of
conducting ISR operations by illegally
connecting various equipment or apparatus
to PLDTs telephone system, through which
petitioner is able to resell or re-route
international long distance calls using
respondent PLDTs facilities constitutes
acts of subtraction (taking)penalized under
the said article(Laurel vs. Abrogar).
THEFT OF BULKY GOODS - Is the
ability of the accused to freely dispose of
bulky goods stolen from the owner
determinative as to the consummation of
theft? No. In Valenzuela vs. People, G. R.
No. 160188, June 21, 2007, the Supreme
Court En Banc expressly abandoned the
principle in Dio case. It was held that: The
ability of the offender to freely dispose of
the property stolen is not a constitutive
element of the crime of theft. Such factor
runs immaterial to the statutory definition
of theft, which is the taking, with intent to
gain, of personal property of another
without the latters consent. While the Dio
dictum is considerate to the mindset of the
offender, the statutory definition of theft
considers only the perspective of intent to
gain on the part of the offender,
compounded by the deprivation of property
on the part of the victim.
Unlawful
taking
is
deemed
complete from the moment the offender
gains possession of the thing, even if he has
no opportunity to dispose of the same.
Unlawful taking, which is the deprivation of
ones personal property, is the element
which
produces
the
felony in its
consummated stage. At the same time,
without unlawful taking as an act of
execution, the offense could only be
attempted theft, if at all. Thus, theft cannot
have a frustrated stage. Theft can only be
attempted or consummated (Valenzuela vs.
50 | P a g e
People, G. R. No. 160188, June 21, 2007,

En Banc).
THEFT OF CHECK - In Miranda vs.
People, G.R. No. 176298, January 25, 2012
- Petitioner was entrusted with checks
payable to complainant by virtue of her
position as accountant and bookkeeper.
She deposited the said checks to the joint
account maintained by complainant, then
withdrew a total of P797,187.85 from said
joint account using the pre-signed checks,
with her as the payee. Petitioner argued
that full ownership of the thing stolen
needed to be established first before she
could be convicted of qualified theft. Held:
The subject of the crime of theft is any
personal property belonging to another.
Hence, as long as the property taken does
not belong to the accused, who has a valid
claim thereover, it is immaterial whether
said offender stole it from the owner, a mere
possessor, or even a thief of the property.
ROBBERY
Robbery with homicide exists when
a homicide is committed either by reason,
or on 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 is committed with violence or
intimidation against persons; (2) the
property belongs to another; (3) the taking
is animo lucrandi or with intent to gain; and
(4) on the occasion or by reason of the
robbery, the crime of homicide, as used in
the generic sense, was committed.
a. Intent to rob - A conviction
needs certainty that the robbery is the
central purpose and 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 (People vs. Ladiana, GR No.
174660, May 30, 2011, Justice Peralta).
Assuming that robbery was indeed
committed, the prosecution must establish
with certitude that the killing was a mere
incident to the robbery, the latter being the
perpetrators main purpose and objective.
It is not enough to suppose that the
purpose of the author of the homicide was
to rob; a mere presumption of such fact is
not sufficient. Stated in a different
manner, a conviction requires certitude
that the robbery is the main purpose, and
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. What
is crucial for a conviction for the crime of

robbery with homicide is for the
prosecution to firmly establish the
offenders intent to take personal property
before the killing, regardless of the time
when the homicide is actually carried out
(People vs. Gatarin, GR NO. 198022, April
07, 2014).
b. Intent to kill and rob However, the law does not require that the
sole motive of the malefactor is robbery
and commits homicide by reason or on the
occasion thereof. In one case, it was ruled
that even if the malefactor intends to kill
and rob another, it does not preclude his
conviction for the special complex crime of
robbery with homicide. The fact that the
intent of the felons was tempered with a
desire also to avenge grievances against
the victim killed, does not negate the
conviction of the accused and punishment
for robbery with homicide (People vs.
Daniela, G.R. No. 139230, April 24, 2003).
c. Robbing, killing and raping - A
conviction for robbery with homicide is
proper even if the homicide is committed
before, during or after the commission of
the robbery. The homicide may be
committed by the actor at the spur of the
moment or by mere accident. Even if two
or more persons are killed and a woman is
raped and physical injuries are inflicted on
another, on the occasion or by reason of
robbery, there is only one special complex
crime of robbery with homicide. What is
primordial is the result obtained without
reference or distinction as to the
circumstances, cause, modes or persons
intervening in the commission of the crime
(People vs. Daniela, G.R. No. 139230, April
24, 2003).
d. One of the robbers is the victim
of homicide - It is immaterial that the
death would supervene by mere accident;
or that the victim of homicide is other than
the victim of robbery, or that two or more
persons are killed or that aside from the
homicide, rape, intentional mutilation, or
usurpation of authority, is committed by
reason or on the occasion of the crime.
Likewise immaterial is the fact that the
victim of homicide is one of the robbers; the
felony would still be robbery with homicide.
Once a homicide is committed by or on the
occasion of the robbery, the felony
committed is robbery with homicide. All the
felonies committed by reason of or on the
occasion of the robbery are integrated into
one
and
indivisible
felony
of robbery with homicide.
The
word
homicide is used in its generic sense.
Homicide, thus, includes murder, parricide,
and infanticide (People vs. Laog, G.R. No.
178321, October 5, 2011; (People vs. Ebet,
GR No. 181635, November 15, 2010,
51 | P a g e
Justice Peralta; People vs. De Leon, GR

No. 179943, June 26, 2009, Justice
Peralta; People vs. Diu, GR No. 201449,
April 03, 2013).
In People vs. Concepcion, G.R. No.
200922, July 18, 2012 - Accused snatched
victims shoulder bag which was hanging
on her left shoulder. No violence,
intimidation or force was used in snatching
her shoulder bag. Given the facts, the
snatching of shoulder bag constitutes the
crime of theft, not robbery. Accuseds coconspirator,
who
was
driving
the
motorcycle, died because he lost control of
the motorcycle and crashed in front of a
taxi. Since accused as passenger in the
motorcycle, did not perform or execute any
act that caused the death of his companion,
he cannot be held liable for homicide.
e. Homicide through reckless
imprudence - In robbery with homicide,
the original criminal design of the
malefactor is to commit robbery, with
homicide perpetrated on the occasion or by
reason of the robbery. The intent to commit
robbery must precede the taking of human
life. The homicide may take place before,
during or after the robbery. It is only the
result obtained, without reference or
distinction as to the circumstances, causes
or modes or persons intervening in the
commission of the crime that has to be
taken into consideration. There is no such
felony of robbery with homicide through
reckless imprudence or simple negligence.
The constitutive elements of the crime,
namely, robbery and homicide, must be
consummated (People vs. Ebet, GR No.
Peralta; People vs. De Leon, GR No.
179943, June 26, 2009, Justice Peralta;
People vs. Diu, GR No. 201449, April 03,
2013).
f. Failure to present the stolen
property - Intent to rob is an internal act
but may be inferred from proof of violent
unlawful taking of personal property. When
the fact of taking has been established
beyond reasonable doubt, conviction of the
accused is justified even if the property
subject of the robbery is not presented in
court. After all, the property stolen may
have been abandoned or thrown away and
destroyed by the robber or recovered by the
owner. The prosecution is not burdened to
prove the actual value of the property
stolen or amount stolen from the victim.
Whether the robber knew the actual
amount in the possession of the victim is of
no moment because the motive for robbery
can exist regardless of the exact amount or
value involved (People vs. Ebet, GR No.
Peralta; People vs. De Leon, GR No.

179943, June 26, 2009, Justice Peralta;
People vs. Diu, GR No. 201449, April 03,
2013).
g. Direct connection between
robbery and homicide - Essential for
conviction of robbery with homicide is proof
of a direct relation, an intimate connection
between the robbery and the killing,
whether the latter be prior or subsequent to
the former or whether both crimes were
committed at the same time (People vs.
Buyagan, G.R. No. 187733, February 8,
2012). Homicide is said to have been
committed by reason or on the occasion of
robbery if, for instance, it was committed to
(a) 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. As long as there is
a nexus between the robbery and the
homicide, the latter crime may be
committed in a place other than the situs of
the robbery (People vs. Ebet, GR No.
Peralta).
h. Claim of ownership - The 10th
floor unit of a building is owned by a
corporation and served as the family
residence prior to the death of the parents
of X and A. The unit, including the personal
properties inside, is the subject of estate
proceedings pending in another court and
is, therefore, involved in the disputed
claims among the siblings. X armed with a
Board Resolution authorizing him to break
open the door lock system of 10th floor unit
of a building and to install a new door lock
system went up to the subject unit to
implement said resolution. According to A,
X brought out from the unit her personal
belongings. Is X liable for robbery?
Answer: No. X took property openly
and avowedly under that claim of
ownership. The fact that these properties
were taken under claim of ownership
negates the element of intent to gain. One
who takes the property openly and
avowedly under claim of title offered in good
faith is not guilty of robbery even though
the claim of ownership is untenable. X
should not be held liable for the alleged
unlawful act absent a felonious intent.
Actus non facit reum, nisi mens sit rea. A
crime is not committed if the mind of the
person performing the act complained of is
innocent (Sy vs. Gutierrez, GR No. 171579,
November 14, 2012, Justice Peralta).
i. Robbery with rape - To be
convicted of robbery with rape, the
following elements must concur: (1) the
taking of personal property is committed
52 | P a g e
with violence or intimidation against

persons; (2) the property taken belongs to
another; (3) the taking is characterized by
intent to gain or animus lucrandi; and (4)
the robbery is accompanied by rape (People
vs. Evangelio, GR No. 181902, August 31,
The
following
circumstantial
evidence presented by the prosecution,
when analyzed and taken together, lead to
the inescapable conclusion that the
accused raped AAA: first, while two of the
robbers were stealing, appellant and one of
the robbers brought AAA inside the comfort
room; second, inside the comfort room, AAA
was stripped off her clothes and her
panty; third, when AAA resisted and
struggled, appellant and the other robber
banged her head against the wall, causing
her to lose consciousness; fourth, when she
regained consciousness, the culprits were
already gone and she saw her shorts and
panty strewn at her side; and fifth, she
suffered pain in her knees, head, stomach
and, most of all, in her vagina which was
then bleeding (People vs. Evangelio, GR No.
181902, August 31, 2011, Justice Peralta).
UNINHABITED
HOUSE
In
Marquez vs. People, G.R. No.
181138,
December 3, 2012 - The records show that
the store alleged to have been robbed by
petitioners is not an inhabited house,
public building or building dedicated to
religious worship and their dependencies
under Article 299 and as defined under
Article 301. From Valderosas testimony, it
can be deduced that the establishment
allegedly robbed was a store not used as a
dwelling. In fact, after the robbery took
place, there was a need to inform Valderosa
of the same as she was obviously not
residing in the store. If the store was not
actually occupied at the time of the robbery
and was not used as a dwelling, since the
owner lived in a separate house, the
robbery committed therein is punished
under Article 302. Neither was the place
where the store is located owned by the
government. It was actually just a stall
rented by Valderosa from a private person.
Hence, the applicable provision in this case
is Article 302 and not Article 299 of the
RPC.
CARNAPPING - Under the AntiCarnapping Act, the penalty of reclusion
perpetua to death shall be imposed when
the owner or driver of the vehicle is killed in
the course of the commission of the
carnapping or on the occasion thereof. To
prove the special complex crime of
carnapping with homicide, there must be
proof not only of the essential elements of
carnapping, but also that it was the original
criminal design of the culprit and the killing

was perpetrated "in the course of the
commission of the carnapping or on the
occasion thereof" (People vs. Nocum et. Al.,
G.R. No. 179041, April 1, 2013).
Under RA 9346, persons convicted
of offenses punishable with reclusion
perpetua or whose sentences will be
reduced to reclusion perpetua by reason of
this law, shall not be eligible for parole.
THREATS
What is the difference among grave
threats, light threats and other light
threats? In grave threats, the wrong
threatened amounts to a crime which may
or may not be accompanied by a condition.
In light threats, the wrong threatened does
not amount to a crime but is always
accompanied by a condition. In other light
threats, the wrong threatened does not
amount to a crime and there is no condition
(Calauag vs. People, (G. R. No. 171511,
March 4, 2009).
BLACKMAIL
Blackmailing may constitute: (1)
Light threats under Article 283; (2)
Threatening to publish, or offering to
prevent the publication of, a libel for
compensation under Article 356; and (3)
robbery with intimidation against person.
Example: X, DENR officer, threatened to
confiscate the hot logs from complainant
and prosecute it for illegal logging unless
the latter will give her P100,000.
Complainant gave X the amount demanded.
The crime committed is robbery with
intimidation (extortion). In robbery with
intimidation of persons, the intimidation
consists in causing or creating fear in the
mind of a person or in bringing in a sense
of mental distress in view of a risk or evil
that may be impending, real or imagined.
Such fear of injury to person or property
must continue to operate in the mind of the
victim at the time of the delivery of the
money. In this case, the P100,000.00
"grease money" was taken by X from
complainant through intimidation. By using
her position as the DENR officer, X
succeeded in coercing the complainants to
choose between two alternatives: to part
with their money, or suffer the burden and
humiliation of prosecution and confiscation
of the logs (Sazon vs. Sandiganbayan, G.R.
No. 150873, February 10, 2009).
ARSON
Is it necessary for the prosecution to
prove wrongful intent to burn on the part of
the accused to establish arson? No.
Although intent may be an ingredient of the
crime of arson, it may be inferred from the
acts
of
the
accused. There
is
a
53 | P a g e
presumption that one intends the natural

consequences of his act; and when it is
shown that one has deliberately set fire to a
building, the prosecution is not bound to
produce further evidence of his wrongful
intent. If there is an eyewitness to the crime
of arson, he can give in detail the acts of
the accused. When this is done the only
substantial issue is the credibility of the
witness (People vs. De Leon, G. R. No.
180762, March 4, 2009).
What is the crime committed if the
offender burned the building and there is
person who died? In the classification of
crimes committed by fire involving the
killing of the victim, attention must be given
to the intention of the author. Main
objective of the offender determines the
kind of crime committed. (a) Intent to burn
If the main objective is the burning of the
building or edifice, but death results by
reason or on the occasion of arson, the
crime is simply arson (qualified by dead of
the victim), and the resulting homicide is
absorbed. (b) Intent to kill If the main
objective is to kill a particular person who
may be in a building or edifice, when fire is
resorted to as the means to accomplish
such
goal
the
crime
committed
is murder only. When the Code declares
that killing committed by means of fire is
murder, it intends that fire should be
purposely adopted as a means to that end.
There can be no murder without a design to
take life. Murder qualified by means of fire
absorbs the crime of arson since the latter
is an inherent means to commit the former
(People vs. Baluntong, G.R. No. 182061,
March 15, 2010; People vs. Cedenio, G.R.
No. 93485, June 27, 1994) (c) Intent to
conceal 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.
Article 320 of RPC contemplates the
malicious burning of structures, both
public and private, hotels, buildings,
edifices, trains, vessels, aircraft, factories
and
other
military,
government
or
commercial establishments by any person
or group of persons. Section 3 of PD No.
1613, on the other hand, currently governs
simple arson. P.D. No. 1613 contemplates
the malicious burning of public and private
structures, regardless of size, not included
in Article 320 of the RPC, as amended by
Republic Act No. 7659. This law punishes
simple arson with a lesser penalty because
the acts that constitute it have a lesser
degree of perversity and viciousness. Simple
arson contemplates crimes with less
significant social, economic, political, and
national
security
implications
than

destructive arson (People vs. Macabando,
GR No. 188708, July 31, 2013). Burning of
inhabited house or dwelling is simple arson
under Section 3 of P.D. No. 1613, and not
destructive arson under RPC. Burning
personal property is also simple arson
under Section 1 of PD No. 1613.
The nature of Destructive Arson is
distinguished from Simple Arson by the
degree of perversity or viciousness of the
criminal offender. The acts committed
under Art. 320 of The Revised Penal Code
constituting
Destructive
Arson
are
characterized as heinous crimes "for being
grievous, odious and hateful offenses and
which, by reason of their inherent or
manifest wickedness, viciousness, atrocity
and
perversity
are
repugnant
and
outrageous to the common standards and
norms of decency and morality in a just,
civilized and ordered society." On the other
hand, acts committed under PD 1613
constituting Simple Arson are crimes with a
lesser degree of perversity and viciousness
that the law punishes with a lesser penalty.
In other words, Simple Arson contemplates
crimes
with
less
significant
social,
economic, political and national security
implications than Destructive Arson (People
vs. Macabando, GR No. 188708, July 31,
2013).
The Information alleged that the
appellant set fire to his own house, and
that the fire spread to other inhabited
houses. These allegations were established
by evidence. The accused testified that his
burnt two-story house was used as
a residence. That the appellants act
affected many families will not convert the
crime to destructive arson, since the
appellants act does not appear to be
heinous or represents a greater degree of
perversity and viciousness when compared
to those acts punished under Article 320 of
the RPC. The established evidence only
showed that the appellant intended to burn
his own house, but the conflagration spread
to the neighboring houses (People vs.
Macabando, GR No. 188708, July 31,
2013). Note: Setting fire to his own property
under circumstances which expose to
danger the life or property of another is
arson under Section 1 of PD No. 1613.
KIDNAPPING
As for the crime of kidnapping, the
following elements, as provided in Article
267 of the Revised Penal Code, must be
proven: (a) a person has been deprived of
his liberty, (b) the offender is a private
individual, and (c) the detention is
unlawful. (People vs. Jovel, G.R. No.
189820. October 10, 2012).
54 | P a g e
The crime has the following

elements: (1) the offender is a private
individual; (2) he kidnaps or detains
another, or in any manner deprives the
latter of his liberty; (3) the act of detention
or kidnapping is illegal; and (4) in the
commission of the offense, any of the
following circumstances is present: (a) the
kidnapping or detention lasts for more than
three days; (b) it is committed by simulating
public authority; (c) any serious physical
injuries are inflicted upon the person
kidnapped or detained or threats to kill him
are made; or (d) the person kidnapped or
detained is a minor, female or a public
official (People vs. Jacalney, GR No.
168552,
October 03, 2011, Justice
Peralta).
The essence of the crime of
kidnapping is the actual deprivation of the
victim's liberty, coupled with the intent of
the accused to effect it. It includes not only
the imprisonment of a person but also the
deprivation of his liberty in whatever form
and for whatever length of time. It involves
a situation where the victim cannot go out
of the place of confinement or detention, or
is restricted or impeded in his liberty to
move (People vs. Jacalney, GR No. 168552,
X dragged A, a minor, to his house
after the latter refused to go with him. Upon
reaching the house, X tied her hands.
When A pleaded that she be allowed to go
home, he refused. After more or less one
hour, X released A and instructed her on
how she could go home. What is the crime
committed? Answer: The crime committed
is kidnapping and serious illegal detention.
When X tied the hands of A, the former's
intention to deprive the latter of her liberty
has been clearly shown. For there to be
kidnapping, it is enough that the victim is
restrained from going home. Because of
her tender age, and because she did not
know her way back home, she was then
and there deprived of her liberty. This is
irrespective of the length of time that she
stayed in such a situation. If the victim is a
minor, the duration of his detention is
immaterial (People vs. Jacalney, GR No.
168552,
October 03, 2011, Justice
Peralta).
X seized A, 9 years of age, him by
twisting his right arm, pointed a knife at
him. X brought A to a in a place strange
and unfamiliar to him. Because of his
tender age, he did not know the way back
home. X called victims mother to inform
her that the child is in his custody and of
threatening her that she will no longer see
her son if she failed to show his wife to him.
In a case for kidnapping and serious illegal
detention, X argued s free to go home if he

wanted to because he was not confined,
detained or deprived of his liberty. Is the
argument tenable? Answer: No. For
kidnapping to exist, it is not necessary that
the offender kept the victim in an enclosure
or treated him harshly. Where the victim in
a kidnapping case is a minor, it becomes
even more irrelevant whether the offender
forcibly restrained the victim. Leaving a
child in a place from which he did not know
the way home, even if he had the freedom
to roam around the place of detention,
would still amount to deprivation of
liberty. For under such a situation, the
childs freedom remains at the mercy and
control of the abductor (People vs. Baluya,
GR No. 181822, April 13, 2011, Justice
Peralta).
In this case, victim, a minor, was
not locked up. However, she was seized and
taken from her house through force and
dragged to the mountain. Since then, she
was restrained of her liberty by and kept
under the control of accused. She was
prevented from going back home for a
period of about six days. Accused is guilty
of kidnapping and illegally detaining victim
even if she was not lock-up. Under the
Spanish Penal Code, the modes of
committing
illegal
detention
is
"Secuestrare" and "Encerrare". "Secuestrare"
means sequestration. To sequester is to
separate for a special purpose, remove or
set apart, withdraw from circulation. It also
means to lock-up or imprison. "Encerrare"
is
a
broader
concept
than
secuestrare. Encerrare includes not only the
imprisonment of a person but also the
deprivation of his liberty in whatever form
and for whatever length of time (People vs.
Baldago, G.R. No. 128106-07, January 24,
2003).
RAPE
It is commonly denominated as
organ rape or penile rape and must be
attended by any of the circumstances
enumerated in subparagraphs (a) to (d) of
paragraph 1. On the other hand, rape
under paragraph 2 of Article 266-A is
commonly known as rape by sexual
assault. The perpetrator, under any of the
attendant circumstances mentioned in
paragraph 1, commits this kind of rape by
inserting his penis into another persons
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 genderfree rape (People vs. Soria, G.R. No. I
79031, November 14, 2012).
MENTAL RETARDATION - In rape,
the phrase "deprived of reason" refers to
mental
abnormality,
deficiency
or
55 | P a g e
retardation, which includes (a) idiot

(equivalent to two-year old child); (b)
imbecile (seven-year old child); (c) moron or
feebleminded (twelve-year old child) and (d)
borderline intelligence. A person is guilty of
rape when he had sexual intercourse with a
female who was suffering from a "borderline
mental deficiency (People vs. Butiong, G.R.
No. 168932, October 19, 2011; G.R. No.
140209, December 27, 2002, People vs.
Dalandas,)
Intimidation - Mental retardation
was not alleged in the information.
However, the accused can be convicted of
with rape though intimidation alleged in the
Information. Having sex with a mentally
retarded person even with consent
constitutes rape through intimidation
(People
vs.
Balatazo,
G.R.
No.
118027, January 29, 2004).
Demented
person
The
term demented refers to a person who has
dementia, which is a condition of
deteriorated mentality, characterized by
marked decline from the individuals former
intellectual level and often by emotional
apathy, madness, or insanity. On the other
hand,
the
phrase deprived
of
reason includes those suffering from mental
abnormality,
deficiency,
or
retardation. Thus, a mental retardate can
be properly classified as a person who is
deprived of reason, and not one who is
demented.
Accused was charged in the
Information with rape of a demented person
with a mental age of 7 years old. Evidence
however shows that the victim is not
demented but mentally retarded. The
mistake will not exonerate accused. His
rights to be informed of the nature and
cause of the accusation against him were
violated. The allegation that the victim is a
person with a mental age of 7 years old is
sufficient to inform accused of the nature of
the charges against him. Carnal knowledge
of a woman who is a mental retardate is
rape (People vs. Caoile, GR No. 203041,
June 05, 2013).
Accused was charged in the
Information with rape of a demented person
with mental capacity below 18 years old.
Evidence however shows that the victim is
not demented but mentally retarded.
Mistake in the information will not
exonerate the accused he failed to raise this
as an objection, and the particular facts
stated in the Information were protestation
sufficient to inform him of the nature of the
charge against him (People vs. Ventura, Sr.
GR. No. 205230, March 12, 2014).

Deafmute - The deprivation of
reason need not be complete. Mental
abnormality or deficiency is enough.
Cohabitation with a feebleminded, idiotic
woman is rape. Sexual intercourse with an
insane woman was considered rape. But a
deafmute is not necessarily deprived of
reason. These circumstances must be
proven. Intercourse with a deafmute is not
rape of a woman deprived of reason, in the
absence of proof that she is an imbecile
(People vs. Caoile, GR No. 203041, June 05,
2013).
STATUTORY RAPE - In statutory
rape, what the law punishes is carnal
knowledge of a woman below 12 years of
age. Thus, the only subject of inquiry is the
age of the woman and whether carnal
knowledge took place. The law presumes
that the victim does not and cannot have a
will of her own on account of her tender
years (People vs. Dollano, Jr., GR No.
188851, October 19, 2011, Justice
Peralta).
Qualifying
circumstance
of
mental disability - The mere fact that the
rape victim is a mental retardate does not
automatically merit the appreciation of
qualifying circumstance. Under Article 266B (10) of RPC, knowledge by the offender of
the mental disability, emotional disorder, or
physical handicap at the time of the
commission of the rape is the qualifying
circumstance. As such this circumstance
must be formally alleged in the information
and duly proved by the prosecution (People
vs. Obogne, GR No. 199740, March 24,
2014).
RPC punishes the rape of a mentally
disabled
person
regardless
of
the
perpetrators awareness of his victims
mental
condition.
However,
the
perpetrators knowledge of the victims
mental disability, at the time he committed
the rape, qualifies the crime (People vs.
Caoile, GR No. 203041, June 05, 2013).
UNTENABLE DEFENSE - In crimes
against chastity, the medical examination
of the victim is not an indispensable
element for the successful prosecution of
the crime as her testimony alone, if
credible, is sufficient to convict the accused
thereof (People vs. Ortega, G.R. No. 186235,
January 25, 2012).
In
Sison
vs.
People,
G.R.
No. 187229, February 22, 2012 -While
petitioner was portraying AAA as a
prostitute, the latter cried. AAA's crying
shows how she might have felt after being
raped by the petitioner and yet be accused
of a woman of loose morals. The victim's
moral character in rape is immaterial where
56 | P a g e
it is shown that intimidation was used for

the victim to have sex with the accused.
Time and again, we have taken into
consideration how rapists are not deterred
by the presence of people nearby, such as
the members of their own family inside the
same room, with the likelihood of being
discovered, since lust respects no time,
locale or circumstance (People vs. Colorado,
G.R. No. 200792, November 14, 2012)
RAPE THROUGH FRAUDELENT
MACHINATION - In U.S. vs. Hernandez,
29 Phil. 109, accused Hernandez, who
seduced a 15-year-old girl to live with him
by procuring the performance of a
fictitious marriage ceremony with the help
of Bautista, who pretended to be a
Protestant minister, was held liable for the
complex crime proper of simple seduction
(Art. 338) through usurpation of official
function (Art. 177). Usurping the function
of a priest to solemnize marriage is a
necessary means to seduce a minor.
Comment: The case of Hernandez was
decided prior to the effectivity of the RPC.
At that time, a religious official such as a
bishop is a person in authority within the
purview of the Old Penal Code (Smith, G.R.
No. 14057, January 22, 1919). However,
Article 152 of RPC does not include
religious minister as a person in authority.
Hence, performing the function of religious
minister in solemnizing marriage is not
usurpation of official function. It is
submitted that the crime committed by
accused is rape through fraudulent
machination.
HOMICIDE - In the special complex
crime of rape with homicide, the term
"homicide" is to be understood in its generic
sense, and includes murder and slight
physical injuries committed by reason or on
occasion of the rape. Hence, even if the
circumstances of treachery, abuse of
superior
strength
and
evident
premeditation are alleged in the information
and duly established by the prosecution,
the same would not qualify the killing to
murder and the crime committed is still
rape with homicide. However, these
circumstances shall be regarded as
ordinary aggravating (People vs. Laog, G.R.
No. 178321, October 5, 2011).
HOMICIDE ON OCCASION OF
RAPE - 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. The indivisibility of the homicide
and
the
rape
(attempted
or
consummated) is clear and admits of no
doubt. In contrast, the import of the

phrase on the occasion of the rape may not
be as easy to determine. 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 attempted or
consummated rape, where the victim of the
homicide may be a person other than the
rape victim herself for as long as the killing
is linked to the rape, became evident (People
vs. Villaflores, G.R. No. 184926, April 11,
2012).
A and B were walking along the
rice paddies when X suddenly assaulted
them with a lead pipe. X killed A, and
thereafter, raped B. X is liable for special
complex crime of rape with homicide. There
is no doubt that X killed A to prevent
her from aiding B or calling for help once
she is able to run away, and also to silence
her completely so she may not witness the
rape of B, the original intent of X (People
vs. Laog, G.R. No. 178321, October 5,
2011).
In People vs. Isla, G.R. No. 199875,
November 21, 2012 - With respect to the
stabbings, it appears that Isla committed
two acts. The first was while he was
ravishing AAA. The Court considers this
and the rape as one continuous act, the
stabbing being necessary, as far as he was
concerned, for the successful perpetration
of the crime. When he testified, Isla claimed
that he had to use the knife so he could
have sexual intercourse with her. The
second
stabbing
took
place
after
consummation of the rape act. According to
AAA, after her defilement, she noticed the
knife bloodied and she tried to wrest it from
him. In their struggle, she was stabbed
under her lower left breast but she was able
to force Isla to drop the knife. This second
stabbing is a separate and distinct offense
as it was not a necessary means to commit
the rape. It was intended to do away with
her life.
QUALIFIED RAPE - In People vs.
Lascano, G.R. No. 192180, March 21, 2012
Rape is qualified when the offender knew
of the mental disability, emotional disorder
and/or physical handicap of the offended
party at the time of the commission of the
crime. However, the information in the
present case merely stated that the victim
was blind; it did not specifically allege that
the appellant knew of her blindness at the
time of the commission of the rape. Hence,
the crime committed is simple rape.
In qualifying circumstances of
minority and relationship in rape and
special aggravating circumstance under
Section 31(c) of RA No. 7610 in sexual
abuse under Section 5, the guardian must
57 | P a g e
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).
SPONTANEOUS DESISTANCE AND
NOT VOLUNTARY DESISTANCE - The
term spontaneous is not equivalent to
voluntary. Even if the desistance is
voluntary, the same could not exempt the
offender from liability for attempted felony if
there is an external constraint. The term
spontaneous means proceeding from
natural feeling or native tendency without
external constraint; it is synonymous with
impulsive, automatic and mechanical
(People vs. Lizada, G.R. No. 143468-71,
January 24, 2003, En Banc).
Accused had previously raped the
victim several times. During the subject
incident, accused was wearing a pair of
short pants but naked from waist up. He
entered the bedroom of victim, went on top
of her, held her hands, removed her panty,
mashed her breasts and touched her sex
organ.
However, accused saw Rossel
peeping through the door and dismounted.
He berated Rossel for peeping and ordered
him to go back to his room and to sleep.
Accused then left the room of the victim.
Held: Accused intended to have carnal
knowledge of victim. The overt acts of
accused proven by the prosecution were not
merely preparatory acts. By the series of
his overt acts, accused had commenced the
execution of rape, which, if not for his
desistance, will ripen into the crime of rape.
Although accused desisted from performing
all the acts of execution, however, his
desistance was not spontaneous as he was
impelled to do so only because of the
sudden and unexpected arrival of Rossel.
Hence, accused is guilty only of attempted
rape (People vs. Lizada, G.R. No. 14346871, January 24, 2003, En Banc).
ATTEMPTED RAPE - The elements
of the crime of acts lasciviousness are: (1)
that the offender commits any act of
lasciviousness or lewdness; (2) that it is
done: (a) by using force and intimidation or
(b) when the offended party is deprived of
reason or otherwise unconscious, or (c)
when the offended party is under 12 years
of age; and (3) that the offended party is
another person of either sex (People vs.
Rellota, GR No. 168103 , August 03, 2010,
Justice Peralta).
X removed the towel wrapped in
the body of A, laid her on the sofa and
kissed and touched her. A testified that
X wanted to rape her. Is X liable for
attempted rape? No. The acts of X does
not demonstrate the intent to have carnal
knowledge of A; thus, dismissing the mere

opinion and speculation of A, based on
her testimony, that X wanted to rape
her. Even so, the acts should not be left
unpunished as the elements of the crime of
acts of lasciviousness (People vs. Rellota,
G.R. No. 168103. August 3, 2010, Justice
Peralta)
What is the crime committed if the
penis of the accused touched female organ
of the non-consenting victim?(a) If the
touching" of the female organ constitutes
the sliding of the penis into or the touching
of either labia majoraor labia minoraof the
pudendum, the crime committed is
consummated rape. Anything short of that
will only result in either attempted rape or
acts of lasciviousness (People vs. Publico,
April 13, 2011, G.R. No. 183569). Sexual
penetration even without laceration of the
hymen or even the briefest of contact
consummates rape (People vs. Pangilinan,
G.R. No. 183090, November 14, 2011).
However, the penis that touches the
external genitalia must be capable of
consummating the sexual act to constitute
consummated rape (People vs. Butiong,
G.R. No. 168932, October 19, 2011). (b) If
the touching merely constitutes an
epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the
penis on the external layer of the victims
vagina, or the mons pubis, the crime
committed is either attempted rape or acts
of lasciviousness (People v. Campuhan,
G.R. No. 129433, March 30, 2000).
Attempted rape is committed when the
touching of the vagina by the penis is
coupled with the intent to penetrate;
otherwise, there can only be acts of
lasciviousness. The
difference
between
attempted rape and acts of lasciviousness
lies in the intent of the perpetrator as
deduced from his external acts. (People vs.
Dadulla, G. R. No. 172321, February 9,
2011; People vs. Collado G.R. Nos. 13566770, March 1, 2001).
X opened the zipper and buttons
of the victims shorts, touching her, and
trying to pull her from under the bed. Is X
liable for acts of lasciviousness or
attempted rape?The acts of X manifested
lewd designs, not intent to lie with her. The
evidence to prove that a definite intent to lie
with the victim motivated X was plainly
wanting, therefore, rendering him guilty
only of acts of lasciviousness (People vs.
Dadulla, G. R. No. 172321, February 9,
2011).
Mother of the victim saw X was
kneeling before victim whose pajamas and
panty were already removed, while his short
pants were down to his knees. Accused was
forcing his penis into victims vagina.
Horrified, she cursed the accused and
58 | P a g e
boxed him several times. Is X liable for

acts of lasciviousness or attempted rape?
X should be held liable for attempted rape
since it was not shown that his penis was
able to penetrate vagina of victim however
slight (People vs. Campuhan, G.R. No.
129433, March 30, 2000, En Banc). Intent
to have sexual intercourse was clearly
established in this case.
In the following circumstances, the
accused were convicted of attempted rape:
(1) kissing AAAs nape and neck;
undressing her; removing his clothes and
briefs; lying on top of her; holding her
hands and parting her legs; and trying to
insert his penis into her vagina; (2) The
victim declared that the accused placed his
penis on her vagina; and claimed that it
touched her private parts. The victims
testimony is too ambiguous to prove the
vital element of penile penetration; (3) The
victim testified that the accused placed his
penis on top of her vagina, and that she felt
pain. There was no showing that the
accuseds penis entered the victims vagina.
The pain that the victim felt might have
been caused by the accuseds failed
attempts to insert his organ into her vagina;
(4) The victim did not declare that there was
the slightest penetration, which was
necessary to consummate rape. (5) The
victim testified that the accused poked
her vagina. The Court could not discern
from the victim's testimony that the
accused attained some degree of penile
penetration, which was necessary to
consummate
rape. (5)
The
victims
statements that the accused was trying to
force his sex organ into mine and
binundol-undol ang kanyang ari did not
prove that the accuseds penis reached the
labia of the pudendum of the victims
vagina (People vs. Pareja, G.R. No. 188979,
September 5, 2012).
Consummated
rape
through
sexual assault - A, a child, testified that X
touched her private part and licked it but he
did not insert his finger inside her vagina.
What is the crime committed? Answer: If
the tongue, in an act of cunnilingus,
touches the outer lip of the vagina, the act
should also be considered as already
consummating the crime of rape through
sexual assault, not the crime of acts of
lasciviousness. This testimony of the victim,
however, is open to various interpretation,
since it cannot be identified what specific
part of the vagina was defiled by X. Thus, X
cannot be convicted of rape through sexual
assault. Thus, X is liable for acts of
lasciviousness (People vs. Bonaagua, GR
No. 188897, June 06, 2011, Justice
Peralta).

Conspiracy - Accused are liable
for two (2) counts of rape on account of a
clear conspiracy between them, shown by
their
obvious
concerted
efforts
to
perpetrate, one after the other, the rapes.
Each of them is responsible not only for the
rape committed personally by him but also
for the rape committed by the other as well
(People vs. Lascano, G.R. No. 192180,
March 21, 2012).
dilability of the hymen varies from one

woman to another such that it may be so
elastic as to stretch without laceration
during intercourse, or on the other hand,
may be so resistant that its surgical
removal is necessary before intercourse can
ensue. In some cases even, the hymen is
still intact even after the woman has given
birth (People vs. Deligero, GR No. 189280,
April 17, 2013).
Variance rule - Information charged

the accused with rape through carnal
knowledge. Thus, accused cannot be found
guilty of rape by sexual assault even
though it was proven during trial. This is
due to the material differences and
substantial distinctions between the two
modes of rape; thus, the first mode is not
necessarily included in the second, and
vice-versa.
Consequently,
to
convict
accused of rape by sexual assault when
what he was charged with was rape
through carnal knowledge, would be to
violate his constitutional right to be
informed of the nature and cause of the
accusation against him. Nevertheless,
accused may be convicted of the lesser
crime of acts of lasciviousness under the
variance doctrine even though the crime
charged against accused was for rape
through carnal knowledge, he can be
convicted of the crime of acts of
lasciviousness without violating any of his
constitutional rights because said crime is
included in the crime of rape (People vs.
Pareja, GR No. 202122, January 15, 2014).
The absence of fresh lacerations in

victims hymen does not prove that
appellant did not rape her. A freshly broken
hymen is not an essential element of rape
and healed lacerations do not negate
rape. In addition, a medical examination
and a medical certificate are merely
corroborative and are not indispensable to
the prosecution of a rape case. The credible
disclosure of a minor that the accused
raped her is the most important proof of the
sexual abuse (People vs. Broca, GR No.
201447, January 09, 2013).
Pardon - For crimes of seduction,

abduction, and acts of lasciviousness,
pardon and marriage extinguish criminal
liability. However, pardon should have been
made prior to the institution of the criminal
actions (People vs. Dollano, Jr., GR No.
188851, October 19, 2011, Justice
Peralta).
Rape is no longer a crime against
chastity for it is now classified as a crime
against persons. Consequently, rape is no
longer considered a private crime or that
which cannot be prosecuted, except upon a
complaint filed by the aggrieved party.
Hence, pardon by the offended party of the
offender in the crime of rape will not
extinguish the offender's criminal liability
(People vs. Bonaagua, GR No. 188897,
Hymen rapture, not required - It is
possible for the victims hymen to remain
intact despite repeated sexual intercourse.
Likewise, whether the accuseds penis fully
or only partially penetrated the victims
genitalia, it is still possible that her hymen
would remain intact because it was thick
and distensible or elastic. The strength and
59 | P a g e
Sweetheart
theory
The
sweetheart theory, as a defense, necessarily
admits carnal knowledge, the first element
of rape. This admission makes the
sweetheart theory more difficult to defend,
for it is not only an affirmative defense that
needs
convincing
proof;
after
the
prosecution has successfully established
a prima facie case, the burden of evidence is
shifted to the accused, who has to adduce
evidence
that
the
intercourse
was
consensual (People vs. Deligero, GR No.
189280, April 17, 2013).
Sweetheart
defense
will
not
exculpate accused from liability for rape
against mentally retarded person. In the
rape of a woman deprived of reason or
unconscious, the victim has no will. The
absence of will determines the existence of
the rape. Such lack of will may exist not
only when the victim is unconscious or
totally deprived of reason, but also when
she is suffering some mental deficiency
impairing her reason or free will. Carnal
knowledge of a woman so weak in intellect
as to be incapable of legal consent
constitutes rape (People vs. Caoile, GR No.
203041, June 05, 2013).
A child was not capable of fully
understanding or knowing the import of her
actions and in consequence, remained
vulnerable to the cajolery and deception of
adults. Unlike rape, therefore, consent is
immaterial in cases involving sexual absue
under Section 5 of RA 7610. For purposes
of sexual abuse, the sweetheart defense is
unacceptable. A
child
exploited
in
prostitution or subjected to other sexual
abuse cannot validly give consent to sexual

intercourse with another person (Caballo
vs. People, GR No. 198732, June 10, 2013).
ABDUCTION
AND
MULTIPLE
RAPES What is/are the crime/s
committed if the accused forcibly took the
victim
and
raped
her
on
four
occasions?When the objective of abduction
is to deprive the victim of his liberty, and
thereafter, she was raped several times, the
crime committed is special complex crime of
kidnapping with rape. No matter how many
rapes had been committed in the special
complex crime of kidnapping with rape, the
resultant crime is only one kidnapping with
rape. This is because these composite acts
are regarded as a single indivisible offense
as in fact R.A. No. 7659 punishes these
acts with only one single penalty. In a way,
R.A. 7659 depreciated the seriousness of
rape because no matter how many times
the victim was raped, like in the present
case, there is only one crime committed
the special complex crime of kidnapping
with rape (People vs. Mirandilla, Jr., G.R.
No. 186417, July 27, 2011). When the
abduction is made with lewd design, the
forcible abduction with rape. For the crime
of kidnapping with rape, the offender
should not have taken the victim with lewd
designs; otherwise, it would be complex
crime of forcible abduction with rape. If the
taking was by forcible abduction and the
woman was raped several times, the crimes
committed is one complex crime of forcible
abduction with rape, in as much as the
forcible abduction was only necessary for
the first rape; and each of the other counts
of rape constitutes distinct and separate
count of rape (People vs. Mirandilla, Jr.,
G.R. No. 186417, July 27, 2011). Hence,
the accused should be held liable for three
counts of rape and forcible abduction with
rape. When the objective of the abduction
was to commit the rape, the offender cannot
be held guilty of the complex crime of
forcible abduction with rape. Under the
circumstances, the rape absorbed the
forcible abduction (People vs. Sabadlab,
G.R. No. 175924, March 14, 2012). Hence,
the accused should be held liable for four
counts of rape.
In forcible abduction with rape
unlike in rape involving abduction, the
victim must be detained for appreciable
length of time.
INTIMIDATION - It is a wellentrenched law that intimidation in rape
includes the moral kind of intimidation or
coercion. Intimidation is a relative term,
depending on the age, size and strength of
the parties, and their relationship with each
other. It can be addressed to the mind as
well. For rape to exist it is not necessary
60 | P a g e
that the force or intimidation employed be

so great or of such character as could not
be resisted. It is only necessary that the
force or intimidation be sufficient to
consummate the purpose which the
accused had in mind. Intimidation must be
viewed in the light of the victim's perception
and judgment at the time of the rape and
not by any hard and fast rule. It is
therefore enough that it produces fear -fear that if the victim does not yield to the
bestial demands of the accused, something
would happen to her at the moment or
thereafter, as when she is threatened with
death
if
she
reports
the
incident. Intimidation would also explain
why there are no traces of struggle which
would indicate that the victim fought off her
attacker (People vs. Leonardo G.R. No.
181036. July 6, 2010).
TENACIOUS RESISTANCE - Is it
necessary in rape through intimidation to
show that the victim offered a tenacious
resistance against the accused?No. Victim
failure to offer tenacious and sufficient
resistance does not imply her submission to
the bestial demands of the accused. It is
not required that she resists his sexual
advances. All that is necessary is that force
and intimidation were employed by the
accused against her, which enabled him to
commit the crime. Neither is it necessary
for the victim to sustain physical
injuries. She need not kick, bite, hit or
scratch the appellant with her fingernails to
prove that she had been defensive. It is
sufficient that she yielded because of a real
application of bodily harm (People vs.
Torres, G.R. No. 134766, January 16,
2004).
Among the amendments of the law
on rape introduced under Republic Act No.
8353 (The Anti-Rape Act of 1997) is Section
266-D, which adverts to the degree of
resistance that the victim may put up
against the rapist, viz: Article 266-D.
Presumptions. - 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 the acts punished
under Article 266-A (People vs. Sabadlab,
G.R. No. 175924, March 14, 2012).
At
the
Bicameral
Conference
Committee Meeting on the disagreeing
provisions of S.B. No. 950 and H.B. No.
6265, the forerunners of R.A. No. 8353, the
legislators agreed that Article 266-D is
intended to "soften the jurisprudence of the
1970's" when resistance to rape was
required to be tenacious. The lawmakers
took note of the fact that rape victims
cannot mount a physical struggle in cases

where they were gripped by overpowering
fear or subjugated by moral authority.
Article 266-D tempered the case law
requirement of physical struggle by the
victim with the victim's fear of the rapist or
incapacity to give valid consent. Thus, the
law now provides that resistance may be
proved by any physical overt act in any
degree from the offended party (People vs.
Dulay, G.R. Nos. 144344-68, July 23, 2002,
En banc)
In People vs. Abanilla, G.R. Nos.
148673-75, October 17, 2003, En Banc - At
around 10:00 oclock in the evening he laid
beside her daughter, Lorena, who was
sleeping. Lorena was then 17 years old for
[she was] born on October 3, 1982. He
touched her private parts, removed her
shorts and pant[y], undressed himself and
laid on top of her. He inserted his penis into
her vagina causing her pain. He then made
the up and down movement and ejected
something hot from his penis. He told
Lorena not to make any noise since her
siblings were sleeping in the same room. He
warned her not to tell anyone about the
incident because, if she did, he would kill
her.
The rule is that resistance may be
proved by any physical overt act in any
degree from the offended party. Tenacious
resistance, however, is not required. Neither
is a determined and persistent physical
struggle on the part of the victim necessary.
It is true that complainants testimony does
not indicate that she put up any resistance
against the sexual advances of appellant.
This notwithstanding, proof of resistance is
not necessary in light of appellants moral
ascendancy over the complainant. Being
the father, appellants force or threat was
sufficient to create fear in the mind of the
complainant compelling her to submit to
his sexual abuse.
Physical resistance need not be
established in rape when threats and
intimidation are employed, and the victim
submits herself to her attackers because of
fear. The use of a weapon, by itself, is
strongly suggestive of force or at least
intimidation, and threatening the victim
with a gun is sufficient to bring her into
submission. Thus, the law does not impose
upon the private complainant the burden of
proving resistance (People vs. Tubat, G.R.
No. 183093, February 1, 2012; People vs.
Penilla, GR No. 189324, March 20, 2013).
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. This
happens when the offender committed rape
61 | P a g e
with grave abuse of authority, which is now

a new mode to commit the crime of rape.
In incestuous rape of a minor,
actual force or intimidation need not even
be employed where the overpowering moral
influence of appellant, who is private
complainants father, would suffice (People
vs. Samandre, G.R. No. 181497, February
22, 2012) In rape committed by a father,
his moral ascendancy and influence over
the victim substitute for the requisite force,
threat, and intimidation, and strengthen
the fear which compels the victim to
conceal her dishonor (People vs. Ortega,
G.R. No. 186235, January 25, 2012; People
vs. Broca, GR No. 201447, January 09,
2013). The absence of violence or offer of
resistance would not affect the outcome of
the case because the overpowering and
overbearing moral influence of the father
over his daughter takes the place of
violence and offer of resistance required in
rape cases committed by an accused who
did not have blood relationship with the
victim (People vs. Osma, G.R. No. 187734,
August 29, 2012).
AAAs failure to shout or to
tenaciously resist appellant should not be
taken against her since such negative
assertion
would
not ipso
facto make
voluntary her submission to appellants
criminal act. In rape, the force and
intimidation must be viewed in the light of
the victims perception and judgment at the
time of the commission of the crime. As
already settled in our jurisprudence, not all
victims react the same way. Some people
may cry out, some may faint, some may be
shocked into insensibility, while others may
appear to yield to the intrusion. Some may
offer strong resistance while others may be
too intimidated to offer any resistance at
all. Moreover,resistance is not an element of
rape. A rape victim has no burden to prove
that she did all within her power to resist
the force or intimidation employed upon
her. As long as the force or intimidation is
present, whether it was more or less
irresistible is beside the point (People vs.
Rivera, GR No. 200508, September 04,
2013; see: People vs. Rubio, G.R.
No. 195239, March 7, 2012; People vs.
Penilla, GR No. 189324, March 20, 2013).
ACTS OF LASCIVIOUNESS
The
elements
of
acts
of
lasciviousness, punishable under Article
336 of the RPC, are: (1) That the offender
commits any act of lasciviousness or
lewdness; (2) That it is done under any of
the following circumstances: a. By using
force or intimidation; or b. When the
offended party is deprived of reason or

otherwise unconscious; or c. When the
offended party is under 12 years of age; and
(3) That the offended party is another
person of either sex (People vs. Garcia, G.R.
No. 200529, September 19, 2012; (People
vs. Rellota, GR No. 168103 , August 03,
The modes of committing acts of
lasciviousness are the same as those of
committing rape under the old version.
CHILD PROSTITUION AND SEXUAL

ABUSE
Sexual abuse under Section 5(b) of
R.A. No. 7610 has three elements: (1) the
accused commits an act of sexual
intercourse or lascivious conduct; (2) the
said act is performed with a child exploited
in prostitution or subjected to other sexual
abuse; and (3) the child is below 18 years
old.
CHILD PROSTITUTION
The elements of paragraph (a) are: 1.
the
accused engages in, promotes,
facilitates or induces child prostitution; 2.
the act is done through, but not limited to,
the following means: a. acting as a procurer
of a child prostitute; b. inducing a person
to be a client of a child prostitute by means
of written or oral advertisements or other
similar means; c. taking advantage of
influence or relationship to procure a child
as a prostitute; d. threatening or using
violence towards a child to engage him as a
prostitute;
or
e.
giving
monetary
consideration, goods or other pecuniary
benefit to a child with intent to engage such
child in prostitution; 3. the child is
exploited or intended to be exploited in
prostitution and 4. the child, whether male
or female, is below 18 years of age (People
vs. Dulay, G.R. No. 193854. September 24,
2012).
In People vs. Dulay, G.R. No.
193854. September 24, 2012 - To be a
principal by indispensable cooperation, one
must participate in the criminal resolution,
a conspiracy or unity in criminal purpose
and cooperation in the commission of the
offense by performing another act without
which
it
would
not
have
been
accomplished.
Nothing in the evidence
presented by the prosecution does it show
that the acts committed by appellant are
indispensable in the commission of the
crime of rape. From the time appellant
convinced AAA to go with her until
appellant received money from the man
who allegedly raped AAA, are not
indispensable in the crime of rape. Anyone
could have accompanied AAA and offered
the latter's services in exchange for money
and AAA could still have been raped. Even
AAA could have offered her own services in
exchange for monetary consideration and
still end up being raped. Thus, this
disproves the indispensable aspect of the
appellant in the crime of rape. It must be
remembered that in the Information, as well
as in the testimony of AAA, she was
delivered and offered for a fee by appellant,
thereafter, she was raped by Speed.
However, the appellant is liable for child
prostitution.
62 | P a g e
Sexual
abuse
and
lascivious
conduct "Sexual abuse" includes the
employment, use, persuasion, inducement,
enticement or coercion of a child to engage
in, or assist another person to engage in,
sexual intercourse or lascivious conduct or
the molestation, prostitution, or incest with
children;
"Lascivious conduct" means the
intentional touching, either directly or
through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or
the introduction of any object into the
genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with
an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual
desire
of
any
person,
bestiality,
masturbation, lascivious exhibition of the
genitals or pubic area of a person (Section
2(g) and (h) of the Rules and Regulations on
the Reporting and Investigation of Child
Abuse Cases)
Child exploited in prostitution or
subject to other sexual abuse - Children,
whether male or female, who for money,
profit, or any other consideration or due to
the coercion or influence of any adult,
syndicate or group, indulge in sexual
intercourse or lascivious conduct, are
deemed to be children exploited in
prostitution and other sexual abuse
(Section 5 of RA No 7610).
The averments in the information
against the accused clearly make out a
charge for sexual abuse under Section 5(b)
of RA No. 7610 although the caption
charged him with child abuse under
Section 10 (a). However, the character of
the crime is not determined by the caption
or preamble of the information nor from the
specification of the provision of law alleged
to have been violated (People vs. Rayon,
G.R. No. 194236, January 30, 2013)
Sexual intercourse or lascivious
conduct under the coercion or influence of
any adult exists when there is some form of
compulsion equivalent to intimidation
which subdues the free exercise of the

offended partys free will (Caballo vs.
People, GR No. 198732, June 10, 2013).
Accused (23 years of age) repeatedly
assured the victim (17 years) of his love for
her, and even, promised to marry her. In
addition, he also guaranteed that she would
not get pregnant since he would be using
the "withdrawal method" for safety. These
were meant to influence her to set aside her
reservations and eventually give into having
sex with accused, with which he succeeded.
The age disparity between an adult and a
minor placed accused in a stronger position
over the victim so as to enable him to force
his will upon the latter. An important factor
is that the victim refused accused's
incipient advances and in fact, asked him
to leave. However, the victim eventually
yielded. Thus, it stands to reason that she
was put in a situation deprived of the
benefit of clear thought and choice. The
actuations of the accused may be classified
as "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).
The
Information
alleged
that
accused committed acts of lasciviousness
upon the person of victim, a minor
subjected to sexual abuse. Can the accused
be convicted for sexual abuse under Section
5 (b) of RA No. 7610? Answer: No. Under
the law, committing lascivious conduct
upon a child under coercion or influence of
an adult or group is sexual abuse. There is
no allegation of coercion or influence, which
is an indispensable ingredient of this crime.
It does not contain the essential facts
constituting the offense, but a statement
of a conclusion of law. Thus, accused
cannot be convicted of sexual abuse under
such Information. The information is void
for being violative of the accuseds
constitutionally-guaranteed right to be
informed of the nature and cause of the
accusation
against him (People
vs.
Pangilinan, GR No. 183090, November 14,
Child 12 years of age or above X
taking advantage of his ascendancy
committed sexual intercourse with his
daughter (15 years of age). What crime can
X be prosecuted for? The child is under the
influence of an adult. This is sexual abuse
under RA No. 7610. The act is committed
with psychological intimidation or grave
abuse authority. This is rape. Hence, X can
be prosecuted for either (1) sexual abuse
under violation of Section 5 (b) of RA No.
7610; or (2) rape. X should not be charged
for Rape in relation to sexual abuse.
Existing jurisprudence, however, proscribes
charging an accused for both crimes,
rather, he may be charged only for either
63 | P a g e
(Alberto vs. Hon. Court of Appeals, GR No.

182130, June 19, 2013). X cannot be
accused of both crimes for the same act
because his right against double jeopardy
will be prejudiced. A person cannot be
subjected twice to criminal liability for a
single criminal act. Likewise, rape cannot
be complexed with a violation of Section
5(b) of RA 7610. Under Section 48 of RPC, a
felony cannot be complexed with an offense
penalized by a special law (People v. Abay,
G.R. No. 177752, February 24, 2009;
People vs. Pangilinan, G.R. No. 183090,
Nov. 14, 2011, Justice Peralta, People v.
Dahilig, G.R. No. 187083, June 13, 2011,
People v. Matias, G.R. No. 186469, June
13, 2012 and Alberto vs. Hon. Court of
Appeals, G.R. No. 182130, June 19, 20130.
Child under 12 years Those who
commit the act of sexual intercourse or
lascivious conduct with a child exploited in
prostitution or subject to other sexual
abuse; Provided, That when the victims is
under twelve (12) years of age, the
perpetrators shall be prosecuted for rape
and for rape or lascivious conduct, as the
case may be: Provided, That the penalty for
lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion
temporal in its medium period (Section 5).
X
taking
advantage
of
his
ascendancy committed sexual intercourse
with his daughter (9 years of age). What
crime can X be prosecuted for? The child,
who is under the influence of an adult, is
under 12 years of age. Hence, X should be
prosecuted for statutory rape. Section 5 (b)
of RA No. 7610 provides that when the
victim (child subjected to sexual abuse) is
under 12 years of age, the perpetrators
shall be prosecuted for rape (People vs.
Jalosjos, G.R. Nos. 132875-76, November
16, 2001).
Accused was convicted of rape
through sexual assault committed against a
4 year old child. There is no allegation in
the Information that the child is indulged in
lascivious conduct for money, profit, or any
other consideration or due to the coercion
or influence of any adult, syndicate or
group. Accused was punished under RPC.
In sum, the penalty under RA 7160 was not
imposed since the information failed to
allege that the victim is exploited in
prostitution or subjected to sexual abuse
(Pielago vs. People, GR No. 202020, March
13, 2013)
Rape through sexual assault and
sexual abuse - X forced A, a minor, in an
isolated place and inserted his finger into
her vagina. (a) For what crimes can X be
prosecuted if A is 17 years of age at the
time? Answer: X committed rape through

sexual assault, or object or instrument rape
under RPC since he inserted object, his
finger, into the vaginal orifice of A by using
force. The crime of sexual abuse under
Section 5 of RA No. 7160 is also committed
since A is indulged in lascivious conduct
under coercion of an adult. However, X can
only be prosecuted either for rape or sexual
abuse.
(b) Would your answer be the same
if the age A is 10 years old? Answer: Since
A, who is a child indulged in lascivious
conduct under coercion of an adult, is
under 12 years of age, X should be
prosecuted for rape through sexual assault
under RPC. Under Section 5 of RA No.
7610, when the child subjected to sexual
abuse is under twelve (12) years of age, the
perpetrators shall be prosecuted for rape
under RPC (People vs. Pangilinan, GR No.
Peralta).
(c) The penalty for rape through
sexual assault under RPC as amended by
RA No. 8353 is prision mayor while the
penalty under RA No. 7610 for acts of
lasciviousness committed against a child
subjected to sexual abuse, under 12 years
of age, is reclusion temporal in its medium
period. If the age of A is 10 years old, would
you impose the penalty under RA No. 8353
or under RA No. 7610?
Answer: One
who commits acts of lasciviousness in
relation to RA No. 7610 suffers the more
severe penalty of reclusion temporal in its
medium period than the one who commits
rape through sexual assault, which is
merely punishable by prision mayor. This is
undeniably unfair to the child victim. To be
sure, it was not the intention of the framers
of RA No. 8353, to have disallowed the
applicability of RA No. 7610 to sexual
abuses committed to children. Despite the
passage of RA No. 8353, R.A. No. 7610 is
still good law, which must be applied when
the victims are children (People vs. Chingh,
G.R. No. 178323, March 16, 2011, Justice
Peralta). The penalty under RA No. 7160
should be imposed.
(d) The penalty for qualified rape
through sexual assault is reclusion
temporal under RPC as amended by RA No.
8353. If A is the 10 year-old daughter of X,
would you impose penalty penalty under
RA No. 8353 or under RA No. 7610?
Answer: Since the crime committed is rape
through sexual assault with qualifying
circumstance of minority and relationship,
the rationale of unfairness to the child
victim that Chingh case wanted to correct is
absent because RPC as amended by RA No.
8353 already prescribes the penalty of
reclusion temporal for this crime. Hence,
there is no more need to apply the penalty
64 | P a g e
prescribed by RA No. 7610 for sexual abuse

(People vs. Bonaagua, G.R. No. 188897,
June 6, 2011, Justice Peralta). The
penalty under RPC should be imposed.
CONSENT OF THE VICTIM - Is
consent of the victim a defense in rape, or
child prostitution or sexual abuse? A child
exploited in prostitution may seem to
"consent" to what is being done to her or
him and may appear not to complain.
However, a child who is "a person below
eighteen years of age or those unable to
fully take care of themselves or protect
themselves from abuse, neglect, cruelty,
exploitation or discrimination because of
their age or mental disability or condition"
is incapable of giving rational consent to
any lascivious act or sexual intercourse
(People vs. Dulay, GR No. 193854,
September 24, 2012, Justice Peralta;
People vs. Delantar, G.R. No. 169143,
February 2, 2007). Submissiveness of child
under influence or psychological coercion of
adult is not likewise a defense in sexual
abuse (People vs. Larin, G.R. No. 128777,
October, 7 1998).
But if the sexual abuse is
committed as alleged in the information
against a child, who indulges in sexual
intercourse under coercion, the prosecution
must show lack of consent on the part of
the victim. Showing that the child
consented to the sexual intercourse will
negate coercion as an element of the
crime (see: People vs. Abello,G.R. No.
151952, March 25, 2009).
CHILD PROSTITUTION
The elements of child prostitution are:
(1) The accused engages in, promotes,
facilitates or induces child prostitution;
(2) The act is done through, but not limited
to, the following means:
(a) Acting as a procurer of a child
prostitute;
(b) Inducing a person to be a client
of a child prostitute by means of
written or oral advertisements or
other similar means;
(c) Taking advantage of influence or
relationship to procure a child as a
prostitute;
(d) Threatening or using violence
towards a child to engage him as a
prostitute; or
(e) giving monetary consideration,
goods or other pecuniary benefit
to a child with intent to engage
such child in prostitution;
(3) The child is exploited or intended to be
exploited in prostitution and

(4) The child, whether male or female, is
below 18 years of age (People vs. Dulay, GR
No. 193854, September 24, 2012, Justice
Peralta).
X convinced A to accompany her.
When they reached Kubuhan, X suddenly
pulled A inside a room where Y. Y gives
money to X and tells her to look for a
younger girl. Thereafter, Y wielded a knife
and tied As hands to the papag and raped
her. A asked for X's help when she saw the
latter peeping into the room while she was
being raped, but X did not do so. After the
rape, X and Y told A not to tell anyone what
had happened or else they would get back
at her. What is the crime committed by X?
Answer: X is not liable as principal
by indispensable cooperation. From the
time X convinced A to go with her until X
received
money
from
Y
are
not
indispensable in the crime of rape. Anyone
could have accompanied A and offered the
latter's services in exchange for money and
A could still have been raped. Note:
Conspiracy was not alleged in the
information.
X is liable for child prostitution
under Section 5 of RA No. 7610. X
facilitated or induced child prostitution.
The act of X in convincing A, who was 12
years old at that time, to go with her and
thereafter, offer her for sex to a man in
exchange for money makes her liable for
child prostitution (People vs. Dulay, GR No.
193854, September 24, 2012, Justice
Peralta).
CHILD ABUSE - Under Section 10
(a) of RA No. 7610, child abuse or cruelty is
committed by any person who shall commit
any other acts of child abuse, cruelty or
exploitation or be responsible for other
conditions prejudicial to the childs
development including those covered by
Article 59 of PD No. 603 but not covered by
the RPC.
Under Section 3 (b), "child abuse"
refers to the maltreatment, whether
habitual or not, of the child which includes
any of the following: (1) Psychological and
physical abuse, neglect, cruelty, sexual
abuse and emotional maltreatment; (2) Any
act by deeds or words which debases,
degrades or demeans the intrinsic worth
and dignity of a child as a human being; (3)
Unreasonable deprivation of his basic needs
for survival, such as food and shelter; or (4)
Failure to immediately give medical
treatment to an injured child resulting in
serious impairment of his growth and
development or in his permanent incapacity
or death.
65 | P a g e
Section 10 (a) punishes not only

those enumerated under Article 59 of PD
No. 603, but also four distinct acts, i.e., (a)
child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for
conditions prejudicial to the child's
development. We stress that Section 10
refers to acts of child abuse other than
child prostitution and other sexual abuse
under Section 5, attempt to commit child
prostitution under Section 6, child
trafficking under Section 7, attempt to
commit child trafficking under Section 8,
and obscene publications and indecent
shows under Section 9 (People vs. Rayon,
G.R. No. 194236, January 30, 2013).
In Bongalon vs. People, G.R. No.
169533, March 20, 2013 - Accused struck
minor-victim at the back with his hand and
slapped his face. His acts however are not
constituted child abuse within the purview
of the Section 10 (a) of RA No. 7610. The
records did not establish beyond reasonable
doubt that his laying of hands on victim
had been intended to debase his "intrinsic
worth and dignity" as a human being, or
that he had thereby intended to humiliate
or embarrass him. The records showed the
laying of hands on victim to have been done
at the spur of the moment and in anger,
indicative of his being then overwhelmed by
his fatherly concern for the personal safety
of his own minor daughters who had just
suffered harm at the hands of victim and
his companion. With the loss of his selfcontrol, he lacked that specific intent to
debase, degrade or demean the intrinsic
worth and dignity of a child as a human
being that was so essential in the crime of
child abuse. It is not trite to remind that
under the well-recognized doctrine of pro
reo every doubt is resolved in favor of the
accused. Thus, the Court should consider
all possible circumstances in his favor. The
accused was convicted of slight physical
injuries.
BIGAMY
X married A, but during the
subsistence of such marriage X married B.
A filed a complaint for bigamy against X. X
filed a petition for the annulment of his first
marriage with A on the ground of
psychological
incapacity
which
was
granted. X moved for the quashal of the
information and dismissal of the criminal
complaint alleging that his first marriage
had already been declared void ab initio. (a)
Is the argument tenable?
No. Article 40 of the Family Code
has settled once and for all the conflicting
jurisprudence on the matter. A declaration
of the absolute nullity of a marriage is now
explicitly required either as a cause of

action or a ground for defense. It has been
held in a number of cases that a judicial
declaration of nullity is required before a
valid
subsequent
marriage
can
be
contracted; or else, what transpires is a
bigamous marriage, reprehensible and
immoral.
What makes a person criminally
liable for bigamy is when he contracts a
second or subsequent marriage during the
subsistence of a valid marriage. Parties to
the marriage should not be permitted to
judge for themselves its nullity, for the
same must be submitted to the judgment of
competent courts and only when the nullity
of the marriage is so declared can it be held
as void, and so long as there is no such
declaration, the presumption is that the
marriage
exists. Therefore, he
who
contracts a second marriage before the
judicial declaration of nullity of the first
marriage assumes the risk of being
prosecuted for bigamy. Otherwise, a person
who commits bigamy can simply evade
prosecution by immediately filing a petition
for the declaration of nullity of his earlier
marriage and hope that a favorable decision
is rendered therein before anyone institutes
a complaint against him (People vs.
Odtuhan, GR No. 191566, July 17, 2013,
Justice Peralta).
if the declaration of nullity of the first
marriage was obtained before the filing of
the complaint for bigamy against X?
Yes. Settled is the rule that criminal
culpability attaches to the offender upon
the commission of the offense and from that
instant, liability appends to him until
extinguished as provided by law and that
the time of filing of the criminal complaint
or information is material only for
determining
prescription
(People
vs.
Odtuhan, GR No. 191566, July 17, 2013,
Justice Peralta).
(c) Would your answer be the same
if the first marriage was contracted prior to
the Family Code?
Yes. Article 40, which is a rule of
procedure, should be applied retroactively
because Article 256 of the Family Code
itself provides that said "Code shall have
retroactive effect insofar as it does not
prejudice or impair vested or acquired
rights." The fact that procedural statutes
may somehow affect the litigants' rights
may
not
preclude
their
retroactive
application
to
pending
actions.
The retroactive application of procedural
laws is not violative of any right of a person
who may feel that he is adversely
affected. The reason is that as a general
66 | P a g e
rule, no vested right may attach to, nor

arise from, procedural laws (Jarillo vs.
People, GR No. 164435, June 29, 2010,
Justice Peralta).
(d) Would your answer be the same
if the second marriage was the one declared
null and void?
Yes. It is a settled rule that the
criminal culpability attaches to the offender
upon the commission of the offense, and
from that instant, liability appends to him
until extinguished as provided by law. It is
clear then that the crime of bigamy was
committed by X from the time he contracted
the second marriage with B. Thus, the
finality of the judicial declaration of nullity
of Xs second marriage does not impede the
filing of a criminal charge for bigamy
against him (Walter vs. People, GR No.
(e) Would your answer be the same
if both the first marriage and the second
marriage are declared null and void?
Yes.
The
subsequent
judicial
declaration of nullity of Xs two marriages
cannot be considered a valid defense in the
crime of bigamy. The moment X contracted
a second marriage without the previous one
having been judicially declared null and
void, the crime of bigamy was already
consummated because at the time of the
celebration of the second marriage, first
marriage, which had not yet been declared
null and void by a court of competent
jurisdiction, was deemed valid and
subsisting. Neither would a judicial
declaration of the nullity of second marriage
make any difference. Since a marriage
contracted during the subsistence of a valid
marriage is automatically void, the nullity
of this second marriage is not per se an
argument for the avoidance of criminal
liability for bigamy. What the law penalizes
is the mere act of contracting a second or
subsequent marriage during the subsistence
of a valid marriage" (Jarillo vs. People, GR
No. 164435, September 29, 2009, Justice
Peralta)
DEFAMATION
Is truthful defamatory imputation
against private individual and government
employee a defense in libel? Proof of truth
of defamatory imputation against private
individual is a defense if it is published with
good motives and for justifiable ends. Proof
of the truth of defamatory imputation
against government employees is a defense:
(1) if it is published with good motives and
for justifiable ends; or (2) if the act or
omission imputed constitutes a crime; or (3)
if the imputation not constituting a crime is

related to the discharge of his duties.
Truthfulness of imputation of a crime or a
function-related defamatory act against a
public officer is a defense even though he
does not prove that the imputation was
published with good motives and for
justifiable ends (Vasquez vs. CA, G.R. No.
118971, September 15, 1999).
MALICE - What are the different
rules on presumption involving malice as
an element of libel or oral defamation? 1.
Disputable presumption of malice - Every
defamatory imputation is presumed to be
malicious. Presumed malice is also known
as malice in law. However, the following
circumstances negate the presumption of
malice in a defamatory statement: (1) if
there is a good intention and justifiable
motive for making it is shown; (2) if the
defamatory statements is a qualified
privilege communication such (a) A private
communication made by any person to
another in the performance of any legal,
moral or social duty; and (b) A fair and true
report, made in good faith, without any
comments or remarks, of any judicial,
legislative or other official proceedings
which are not of confidential nature, or of
any statement, report or speech delivered in
said proceedings, or of any other act
performed by public officers in the exercise
of their functions (Article 354 of RPC). The
enumeration under Article 354 is not an
exclusive list of qualifiedly privileged
communications since fair commentaries on
matters of public interest are likewise
privileged (Borjal vs. CA, G.R. No. 126466
January
14,
1999).
2.
Conclusive
presumption of lack of malice If the
defamatory statements are an absolute
privilege communication, lack of malice is
conclusively presumed. Thus, the person
making defamatory imputation is not
answerable for libel. Absolutely privileged
communications are those which are not
actionable even if the author has acted in
bad faith such as speech or debate in the
Congress or in any Committee thereof
(Philippine Journalists, Inc vs. Thoenen,
G.R. No. 143372, December 13, 2005) or
words uttered or published in the course of
judicial
proceedings,
provided
the
statements are pertinent or relevant to the
case (Malit vs. People, G.R. No. L-58681,
May 31, 1982).
FAIR COMMENT DOCTRINE What is the doctrine of fair comment?
Under this doctrine, fair commentaries on
matters of public interest are privileged and
constitute a valid defense in an action for
libel or slander.
The doctrine of fair
comment means that while in general every
defamatory and public imputation is
deemed false, and every false imputation is
deemed malicious, nevertheless, when the
67 | P a g e
defamatory imputation is directed against a

public person in his public capacity, it is
not necessarily actionable. In order that
such defamatory imputation to a public
official may be actionable, it must either be
a false allegation of fact or a comment
based on a false supposition. If the
comment is an expression of opinion, based
on established facts, then it is immaterial
that the opinion happens to be mistaken,
as long as it might reasonably be inferred
from the facts (Borjal vs. CA, G.R. No.
126466, January 14, 1999).
What is the difference between fair
and true report, and fair comment as a
privilege communications? (1) In fair and
true report, the accused makes a report on
the function-related acts performed by
public officers without any comments or
remarks. On the other hand, in fair
comment, the accused is making a comment
on the function-related acts performed by
public officers. (2) In fair and true report,
the prosecution must prove actual malice
i.e., such as the report was made in bad
faith. In fair comment, the prosecution
must actual malice i.e., comment was made
with knowledge that comment was false or
with reckless disregard of whether it was
false or not (Sulivan vs. Newyork Times
doctrine; Guingguing vs. the Honorable
Court of Appeals, G.R. No. 128959,
September 30, 2005) Only false statements
made with the high degree of awareness of
their probable falsity demanded by New
York Times may be the subject of either civil
or criminal sanctions (Flor vs. People, G.R.
No. 139987, March 31, 2005). (3) In fair
and true report, the report involving
defamatory statement must be true. In fair
comment, the defamatory imputation in the
commentary is not true but the accused
has no knowledge that it is false and has
not recklessly disregarded to know whether
it is false or not.
Is
error
or
misstatement
in
commentaries on function related acts of
public officer actionable in a news articles
for being libelous? Even assuming that the
contents of the articles are false, mere
error, inaccuracy or even falsity alone does
not prove actual malice. Errors or
misstatements are inevitable in any scheme
of truly free expression and debate.
Consistent with good faith and reasonable
care, the press should not be held to
account, to a point of suppression, for
honest mistakes or imperfections in the
choice of language. There must be some
room for misstatement of fact as well as for
misjudgment. Only by giving them much
leeway and tolerance can they courageously
and effectively function as critical agencies
in our democracy (Borjal vs. CA, G.R. No.
126466, January 14, 1999).

Brillante implicated Jejomar Binay,
then the OIC Mayor of Makati, and Dr.
Nemesio Prudente, then President of the
Polytechnic University of the Philippines in
a planned assassination of Syjuco as well
as election-related terrorism. Is the doctrine
of fair comment applicable in this libel
case? The New York Times principle is not
applicable since the utterances are
unrelated to a public officers performance
of his duties (Brillante vs. CA, G.R. Nos.
118757 & 121571, October 19, 2004).
Obviously, commission of murder and
terrorism is not related to the performance
of their duties as public officers.
Cristy Fermin imputed to Annabelle
Rama Gutierrez an actress the crime of
malversation and of vices or defects for
being fugitives from the law and of being a
wastrel. Is the doctrine of fair comment
applicable in this libel case? No. It is
unrelated to public figures work (Fermin vs.
People, G.R. No. 157643, March 28, 2008).
The defamatory imputation has nothing to
do to with works of Annabelle as a as an
actress.
In his series of articles of Erwin
Tulfo, he targeted one Atty. "Ding" So of the
Bureau of Customs as being involved in
criminal activities, and was using his public
position for personal gain. He went even
further than that, and called Atty. So an
embarrassment to his religion, saying
"ikawnayataangpinakagago
at
magnanakawsamiyembronito." He accused
Atty. So of stealing from the government
with his alleged corrupt activities. And
when Atty. So filed a libel suit against him,
Tulfo wrote another article, challenging
Atty. So, saying, "Nagalititongtarantadongsi
Atty. So dahilbinabantayankosiya at inexpose angkagaguhanniyasa [Bureau of
Customs]." In his testimony, Tulfo admitted
that he did not personally know Atty. So,
and had neither met nor known him prior
to the publication of the subject articles. He
also admitted that he did not conduct a
more in-depth research of his allegations
before he published them, and relied only
on his source at the Bureau of Customs. Is
Tulfo liable for Libel? Yes. 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
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
68 | P a g e
not (Erwin Tulfo vs. People, G.R. No.

161032, September 16, 2008).
The article in Bander newspaper
details the sexual activities of a certain
Miss S and one Philip Henson who had
a romantic liaison. The words used in the
article convey that Miss S is a sexual
libertine with unusually wanton proclivities
in the bedroom. Is the article defamatory
and malicious? Is the writer liable for libel?
Yes. In a society such as ours, where
modesty is still highly prized among young
ladies, the behavior attributed to Miss S
by the article in question had besmirched
both her character and reputation. Since on
its face the article is defamatory, there is a
presumption that the offender acted with
malice. However, the writer cannot be held
liable for libel. The libelous article, while
referring to "Miss S," does not give a
sufficient description or other indications
which identify "Miss S." In short, the article
fails to show that "Miss S" and complainant
are one and the same person. Although the
article is libelous, complainant could not
have been the person defamed therein (Diaz
v. People, G.R. No. 159787, May 25, 2007).
INTERNET LIBEL - Under Article
355, a libel committed by means of writing,
printing, lithography, engraving, radio,
phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar
means. Is the internet used to post a
malicious defamatory imputation through
facebook within the contemplation of the
phrase any similar means in Article 355?
Yes.
Writing,
printing,
lithography,
engraving, radio, phonograph, painting,
theatrical
exhibition,
cinematographic
exhibition has a common characteristic,
and that is, their permanent nature as a
means of publication, and this explains the
graver penalty for libel than that prescribed
for oral defamation (People vs. Santiago,
G.R. No. L-17663, May 30, 1962). Hence,
the phrase any similar means should be
understood in the lights of the said
common characteristic of the means to
commit libel. Since nature of internet as a
means of publication is likewise permanent,
it should be considered as a means to
commit libel.
What is the venue for internet libel
committed? As a general rule, the venue of
libel cases where the complainant is a
private individual is limited to only either of
two places, namely: 1) where the
complainant actually resides at the time of
the commission of the offense; or 2) where
the alleged defamatory article was printed
and first published (Article 360 of
RPC).However, 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).
The Information failed to allege the

residence of complainant. While the
Information alleges that complainant is a
physician in Iloilo City, such allegation did
not clearly and positively indicate that he
was actually residing in Iloilo City at the
time of the commission of the offense. It is
possible that complainant was actually
residing in another place (Foz, Jr., vs.
People, GR No. 167764, October 09, 2009,
Justice Peralta).
RECKLESS IMPRUDENCE
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
penal code, already punishes it. In effect,
Section 4(c)(4) above merely affirms that
online defamation constitutes similar
means for committing libel (Disini vs.
Secretary of Justice, G.R. No. 20335,
February 18. 2014).
VENUE - The rules on venue for
libel in Article 360 of RPC are as follows: (1)
Whether the offended party is a public
official or a private person, the criminal
action may be filed in the Regional Trial
Court of the province or city where the
libelous article is printed and first
published; (2) If the offended party is a
private individual, the criminal action may
also be filed in the Regional Trial Court of
the province where he actually resided at
the time of the commission of the offense.
(3) If the offended party is a public officer
whose office is in Manila at the time of the
commission of the offense, the action may
be filed in the Regional Trial Court of
Manila. (4) If the offended party is a public
officer holding office outside of Manila, the
action may be filed in the Regional Trial
Court of the province or city where he held
office at the time of the commission of the
offense (Foz, Jr., vs. People, GR No.
167764, October 09, 2009, Justice Peralta).
Information alleged that the libelous
writings were published in Panay News, a
daily publication with a considerable
circulation in the City of Iloilo and that
complainant (private individual) is a
physician in Iloilo. Is the Information
quashable for improper venue?
Answer: Yes. The allegations in the
Information that "Panay News, a daily
publication with a considerable circulation
in the City of Iloilo" only showed that Iloilo
was the place where Panay News was in
considerable circulation but did not
establish that the said publication was
printed and first published in Iloilo City.
69 | P a g e
Following a vehicular collision in

August 2004, Jason Ivler was charged with
reckless imprudence resulting in slight
physical injuries for injuries sustained by
Maria and reckless imprudence resulting in
homicide and damage to property for the
death of Nestor and damage to their vehicle.
Court convicted Jason for the first charged.
Should the information for the second
charge be quashed on the basis of the rule
on double jeopardy? Reckless imprudence
under Article 365 is a single quasi-offense
by itself and not merely a means to commit
other crimes; hence conviction or acquittal
of such quasi-offense bars subsequent
prosecution for the same quasi-offense,
regardless of its various consequences. The
essence of the quasi offense of criminal
negligence under article 365 of the Revised
Penal Code lies in the execution of an
imprudent or negligent act that, if
intentionally done, would be punishable as
a felony. The law penalizes thus the
negligent or careless act, not the result
thereof. The gravity of the consequence is
only taken into account to determine the
penalty. It does not qualify the substance of
the offense. And, as the careless act is
single, whether the injurious result should
affect one person or several persons, the
offense criminal negligence remains one
and the same, and cannot be split into
different crimes and prosecutions (Ivler vs.
Modesto-San Pedro, G.R. No. 172716,
November 17, 2010). Note: The principle in
Ivler case has abandoned the principle
(Ortega view) that culpa is just a modality
by which a felony may be committed.
In People vs. Dumayag, G.R. No.
172778, 26 November 2012 - The evidence
indubitably shows that before the collision,
the passenger bus was cruising along its
rightful lane when the tricycle coming from
the opposite direction suddenly swerved
and encroached on its lane. The accident
would not have happened had Genayas, the
tricycle driver, stayed on his lane and did
not recklessly try to overtake another
vehicle while approaching a blind curve.
Section 37 of R.A. No. 4136 mandates all
motorists to drive and operate vehicles on
the right side of the road or highway. When

overtaking another, it should be made only
if the highway is clearly visible and is free
from oncoming vehicle. Overtaking while
approaching a curve in the highway, where
the drivers view is obstructed, is not
allowed. Corollarily, drivers of automobiles,
when overtaking another vehicle, are
charged with a high degree of care and
diligence to avoid collision. The obligation
rests upon him to see to it that vehicles
coming from the opposite direction are not
taken unaware by his presence on the side
of the road upon which they have the right
to pass.
In the medical profession, specific
norms or standards to protect the patient
against unreasonable risk, commonly
referred to as standards of care, set the
duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of
the duty of a particular physician in a
particular case exists. Because most
medical malpractice cases are highly
technical, witnesses with special medical
qualifications must provide guidance by
giving the knowledge necessary to render a
fair and just verdict. As a result, the
standard of medical care of a prudent
physician must be determined from expert
testimony in most cases; and in the case of
a specialist (like an anesthesiologist), the
standard of care by which the specialist is
judged is the care and skill commonly
possessed and exercised by similar
specialists under similar circumstances. The
specialty standard of care may be higher
than that required of the general
practitioner.
The standard of care is an objective
standard by which the conduct of a
physician
sued
for
negligence
or
malpractice may be measured, and it does
not depend, therefore, on any individual
physicians own knowledge either. In
attempting to fix a standard by which a
court may determine whether the physician
has properly performed the requisite duty
toward the
patient, expert
medical
testimony from both plaintiff and defense
experts is required. The judge, as the trier
of fact, ultimately determines the standard
of care, after listening to the testimony of all
medical experts.
Here, the Prosecution presented no
witnesses with special medical qualifications
in anesthesia to provide guidance to the
trial court on what standard of care was
applicable. It would consequently be truly
difficult, if not impossible, to determine
whether the first three elements of a
negligence and malpractice action were
attendant (Solidum vs. People, GR No.
192123, March 10, 2014).
70 | P a g e
VIOLENCE AGAINST WOMAN

Are the acts of attaching the face of
his ex-girlfriend on a nude body of a woman
in a picture, sending the picture to her
through cell phone text message and
threatening to post it in the internet for all
to see that caused substantial emotional
and
psychological
distress
to
her
constitutive
of
psychological
violence
against woman under Section 5 (h) of RA
No. 9262? Yes. Under Section 5 (h) of RA
No. 9262 the following conduct that caused
substantial emotional and psychological
distress to the woman with whom the
offender has a marital, sexual or dating
relationship is punishable: (1) Stalking (2)
Peering in the window or lingering outside
the residence of the woman or her child; (3)
Entering or remaining in the dwelling
against her will; (4) Destroying property and
inflicting harm to animals; and (5) Engaging
in any form of harassment or violence;
The acts described above are
considered
harassment
within
the
contemplation of the phrase any form of
harassment in Section 5 (h) (5) (Ang vs.
The Honorable CA, G.R. No. 182835, April
20, 2010).
Is habituality an element of
violence against women and their children
under Section 5 (h)? No. Section 3(a) of R.A.
9262 punishes "any act or series of acts"
that constitutes violence against women.
This means that a single act of harassment
contemplated in Section 5 (h), which
translates into violence, would be enough.
The object of the law is to protect women
and children. Punishing only violence that
is repeatedly committed would license
isolated ones (Ang vs. The Honorable CA,
G.R. No. 182835, April 20, 2010).
HAZING
The
night
before
the
commencement of the rites, the neophytes
of AngGaling fraternity were briefed on
what to expect. They were told that there
would be physical beatings, that the whole
event would last for three days, that that
they could quit anytime. A, a neophyte,
consented to the initiation ritual, having
asked his parents for permission to join the
fraternity. Even after going through the
fraternitys grueling tradition rituals
mainly being beaten by a paddle on the
arms and legsduring the first day, A
continued and completed the second day of
initiation. As consequence of the hazing, A
died. What is the crime committed by
members of the fraternity, who directly
participated in the infliction of harm
against A? The crime committed is hazing.
The principle in Villareal vs. People, G.R.
No. 151258, February 1, 2012 finding the

accused liable for reckless imprudence
resulting in homicide is not anymore
controlling in the light of RA No. 8049 (Antihazing Law)
Under Section 4 of RA 8049, the
officers and members of the fraternity,
sorority or organization who actually
participated in the infliction of physical
harm upon recruit, neophyte or applicant
on occasion of hazing shall be liable as
principals for the crime of hazing. Hazing is
an initiation rite or practice as a
prerequisite for admission into membership
in a fraternity, sorority or organization
(such as AFP, PNP, ROTC) or a requirement
for employment in a corporation by placing
the recruit, neophyte or applicant in some
embarrassing or humiliating situations.
What are the differences between
hazing and homicide or murder? The
differences of homicide or murder and
hazing are as follows: (a) In homicide or
murder, what is criminal is the killing of
person. Hence, intent to kill is an
indispensable element. Death of the victim
consummates the crime. In hazing, what is
prohibited is the infliction of physical harm.
Hence, intent to kill is not material. Death
of the neophyte is only important to
determine the proper imposable penalty. (b)
Homicide or murder is malum in se.
Consent of the victim to the infliction of
harm may negate dolo or criminal intent,
which would make the killing punishable as
reckless imprudence (Villareal vs. People,
G.R. No. 151258, February 1, 2012). Hazing
is malum prohibitum. Consent of the
neophyte is not a defense. (c) In homicide or
murder, praeter intentionem is appreciable
as a mitigating circumstance. In hazing, the
law expressly disallows the appreciation of
this circumstance. In homicide or murder,
the basis of criminal liability is the actual
and conspiratorial participation of the
offender in killing the victim. In hazing,
criminal responsibility is based on (1)
actual participation in inflicting physical
harm, (2) presumed participation (of those
who are present during the hazing), (3) the
presence of adviser, (4) participation in the
planning (by officers, former officers and
alumni of the fraternity); (5) knowledge (of
the parent of frat member in the home of
whom hazing occurred, owner of the place
commission, and school authorities). (d) In
hazing, taking action to prevent the
occurrence of hazing is a defense by any
offender except (1) those who actually
inflicted physical harm and (2) those
(officers, former officers and alumni of the
fraternity), who planned the hazing.
LOOSE FIREARM
71 | P a g e
Section
provides:
29
of
RA
No.
10591
SEC. 29. Use of Loose Firearm in

the Commission of a Crime. The use of a
loose firearm, when inherent in the
commission of a crime punishable under
the Revised Penal Code or other special
laws, shall be considered as an aggravating
circumstance: Provided, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum
penalty which is lower than that prescribed
in the preceding section for illegal
possession of firearm, the penalty for illegal
possession of firearm shall be imposed in
lieu of the penalty for the crime
charged:Provided, further, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum
penalty which is equal to that imposed
under the preceding section for illegal
possession of firearms, the penalty
of prision mayor in its minimum period
shall be imposed in addition to the penalty
for the crime punishable under the Revised
Penal Code or other special laws of which
he/she is found guilty.
If the violation of this Act is in
furtherance of, or incident to, or in
connection with the crime of rebellion of
insurrection,
or
attempted coup
d
etat,such violation shall be absorbed as an
element of the crime of rebellion or
insurrection, or attempted coup d etat.
If the crime is committed by the
person without using the loose firearm, the
violation of this Act shall be considered as a
distinct and separate offense.
USE OF LOOSE FIREARM AS
AGGRVATING CIRCUMSTANCE - As a
rule, when use of a loose firearm in
committing is inherent in the commission
of other crime, such circumstance shall be
considered as an aggravating circumstance.
For example, if a loose firearm was used in
committing homicide, the penalty of
reclusion temporal prescribed for shall be
applied in its maximum period.
However, if the penalty for illegal
possession of loose firearm is graver than
that prescribed for other crime committed,
the penalty for the latter shall be applied.
For example, the penalty for simple robbery
is prision correccional in its maximum
period to prision mayor in its medium
period while the penalty for illegal
possession of small arm under Section 28
of RA No. 10591 is prision mayor in its
medium period. If a loose firearm classified
as small arm is used in committing simple
robbery, the penalty of prision mayor in its

medium period prescribed under RA 10591
shall be imposed.
Furthermore, if the maximum
penalty prescribed for the other crime is
equal to that for illegal possession of loose
firearm, prision mayor in its minimum
period shall be imposed in addition to the
penalty for the other crime. For example,
the penalty of reclusion perpetua is
prescribed for homicide
and illegal
possession of a Class B light weapon. If a
loose firearm involving a Class B light
weapon is used to commit homicide, the
penalty of prision mayor in its minimum
period in addition to reclusion perpetua
shall be imposed.
Lastly, if a loose firearm is used in
the commission of rebellion, sedition or
coup d etat, the latter shall be absorbed in
the former.
DISTINCT AND SEPARATE CRIME
- If the crime is committed by the person
without using the loose firearm, the
violation of this Act shall be considered as a
distinct and separate offense (RA No.
10591). Conversely, if the crime is
committed by the person with the use of
loose firearm, illegal possession of loose
firearm is not a separate offense. In such a
case, the illegal possession of loose firearm
shall be considered as an aggravating
circumstance or a special circumstance
that justifies that imposition of graver
penalty or additional penalty, or as a mere
element of rebellion, sedition or coup d
etat.
QUASABLE INFORMATION - Prior
to RA 8294, the rules obtaining, if the
offender killed a person with the use of
unlicensed firearm, were as follows: (1) use
of unlicensed firearm was not an
aggravating circumstance in murder or
homicide under PD 1866; (2) offender is
liable independently for homicide or murder
and illegal possession of firearm.
Under PD 1866 as amended by RA
8294, the rules, if the offender killed a
person with the use of unlicensed firearm,
are as follows: (1) offender is liable for
homicide or murder with aggravating
circumstance of use of unlicensed firearm;
and (2) the crimes of murder or homicide
and illegal use or possession of firearm are
integrated into a single offense.
In People vs. Bergante, G.R. No.
120369-70, February 27, 1998 - The
violation of PD No. 1866 should have been
punished separately conformably with our
ruling in the case of Quijada G.R. No.
115008-09, July 24, 1996, En Banc.
Nevertheless, fortunately for appellant, PD
72 | P a g e
No. 1866 was recently amended by RA No.

8294, which provides that if homicide or
murder is committed with the use of an
unlicensed firearm, such use of an
unlicensed firearm shall be considered as
an aggravating circumstance. In short,
only one offense should be punished, viz.,
either homicide or murder, and the use of
the unlicensed firearm should only be
considered
as
an
aggravating
circumstance.
In Celino vs. CA, G.R. No. 170562,
June 29, 2007, the Supreme Court ruled
that:
When the other crime involved is one
of those enumerated under RA 8294 (e.g.
homicide, murder, rebellion, sedition or coup
d etat) any information for illegal possession
of firearm should be quashed because the
illegal possession of firearm would have to
be tried together with such other offense,
either considered as an aggravating
circumstance in murder or homicide,, or
absorbed as an element of rebellion,
insurrection, sedition or attempted coup
detat.
When the other crime involved is not
one of those enumerated under RA 8294,
any information for illegal possession of
firearm should not be quashed. The separate
case for illegal possession of firearm should
continue to be prosecuted. Settled is the rule
that an accused cannot be convicted for
illegal possession of firearm if another crime
was committed at the same time. Since
accusation is not synonymous with guilt, it
cannot establish outright that other crime
was committed. However, the accused must
be exonerated of illegal possession of
firearms if he is convicted of some other
crime.
Considering that under RA No.
10591 use of loose firearm is not only an
aggravating circumstance in murder or
homicide but also in other crime such as
robbery or grave threat, the illegal
possession of firearm should not be
considered a separate and distinct crime if
other crime is committed and the use of
loose firearm in inherent therein. Following
the same line of reasoning in the case of
Celino,
any
information
for illegal
possession of firearm should be quashed
because the illegal possession of loose
firearm would have to be tried together
with such other offense, either considered
as an aggravating circumstance in murder
or homicide,, robbery, grave threat, alarm
and scandal, physical injuries or absorbed
as an element of rebellion, insurrection,
sedition or attempted coup detat.
DANGEROUS DRUGS

POSSESSION OF DRUGS For a
prosecution for illegal possession of a
dangerous drug to prosper, it must be
shown that (a) the accused was in
possession of an item or an object identified
to be a prohibited or regulated drug; (b)
such possession is not authorized by law;
and (c) the accused was freely and
consciously aware of being in possession of
the drug (David vs. People, Gr No. 181861,
This crime is mala prohibita, and, as
such, criminal intent is not an essential
element. However, the prosecution must
prove that the accused had the intent to
possess (animus posidendi) the drugs.
Possession, under the law, includes not
only
actual
possession,
but
also
constructive possession. Actual possession
exists when the drug is in the immediate
physical possession or control of the
accused. On the other hand, constructive
possession exists when the drug is under
the dominion and control of the accused or
when he has the right to exercise dominion
and control over the place where it is found.
Exclusive possession or control is not
necessary. The accused cannot avoid
conviction if his right to exercise control
and dominion over the place where the
contraband is located, is shared with
another (Del Castillo vs. People, GR No.
185128, January 30, 2012, Justice
Peralta).
Mere possession of a dangerous
drug per se constitutes prima facie evidence
of
knowledge
or animus
possidendi sufficient to convict an accused
absent a satisfactory explanation of such
possession - the onus probandi is shifted to
the accused, to explain the absence of
knowledge or animus possidendi (Miclat, Jr.
vs. People, GR No. 176077, August 31,
KNOWLEDGE - Is knowledge an
element of dangerous drugs despite this
crime is malum prohibitum? Yes. 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).
ATTEMPTED SALE - A, poseur
buyer, asked X if he has available shabu
for sale. X answered in the affirmative and
showed to A a plastic sachet containing
shabu. A immediately identified himself as
73 | P a g e
a policeman, and then, apprehended X

and confiscated the shabu from his
pocket. What is the crime committed by
X? X is liable for attempted sale of
shabu punishable under Section 26 of RA
9165. Attempt to sell shabu was shown by
the overt act of appellant therein of showing
the substance to the poseur-buyer. The
sale was aborted when the police officers
identified themselves and placed appellant
under arrest (People vs. Figueroa, G.R.
No. 186141, April 11, 2012).
DELIVERY - Is the absence of
marked money as evidence fatal to
prosecution of sale and delivery of
dangerous
drugs?
No.
The
law
defines deliver as a persons act of
knowingly passing a dangerous drug to
another
with
or
without
consideration. Considering
that
the
appellant was charged with the sale and
the delivery of
prohibited
drugs,
the
consummation of the crime of delivery of
marijuana may be sufficiently established
even in the absence of the marked money
(People
vs.
Domingcil,
G.R.
No.
140679, January 14, 2004).
LACK OF COORDINATION WITH
PDEA - Silence of the law as to the
consequences of the failure on the part of
the law enforcers to seek the prior authority
of the PDEA cannot be interpreted as a
legislative intent to make an arrest without
such PDEA participation illegal or evidence
obtained pursuant to such an arrest
inadmissible (People vs. Clarite, G.R.
No. 187157, February 15, 2012). Lack of
coordination with the PDEA will not
invalidate a buy-bust operation. Such
coordination is not an indispensable
requirement
in
buy-bust
operations. Neither Section 86 of Republic
Act No. 9165 nor its Implementing Rules
and Regulations make PDEAs participation
a condition sine qua non for the conduct of
a buy-bust operation (People vs. Mendosa,
G.R. No. 189327, February 29, 2012)
CONFIRMATORY TEST - In Ambre
vs. People, G.R. No. 191532. August 15,
2012 - In
no
instance did accused
challenge, at the RTC,
the
supposed
absence
of confirmatory
drug
test
conducted
on
her. Accused only
questioned the alleged omission when she
appealed her conviction before the CA. It
was too late in the day for her to do so.
Well entrenched is the rule that litigants
cannot raise an issue for the first time on
appeal as this would contravene the basic
rules of fair play and justice.
PHOTOGRAPHY AND INVENTORY
Under Section 21 of RA No. 9165, the
apprehending team having initial custody

and control of the drugs shall, immediately
after seizure and confiscation, physically
inventory and photograph the same in the
presence of the accused or the person/s
from whom such items were confiscated
and/or seized, or his/her representative or
counsel, a representative from the media
and the Department of Justice (DOJ), and
any elected public official who shall be
required to sign the copies of the inventory
and be given a copy thereof; However, the
Implementing rules of RA No. 9165 provides
that
non-compliance
with
these
requirements under justifiable grounds, as
long as the integrity and the evidentiary
value of the seized items are properly
preserved
by
the
apprehending
officer/team, shall not render void and
invalid such seizures of and custody over
said items.
Non-compliance
with
the
requirements of Section 21 of R.A. No. 9165
will not necessarily render the items seized
or confiscated in a buy-bust operation
inadmissible. Strict compliance with the
letter of Section 21 is not required if there
is a clear showing that the integrity and the
evidentiary value of the seized items have
been preserved, i.e., the items being offered
in court as exhibits are, without a specter
of doubt, the very same ones recovered in
the buy-bust operation. Hence, once the
possibility of substitution has been negated
by evidence of an unbroken and cohesive
chain of custody over the contraband, such
contraband may be admitted and stand as
proof of the corpus delicti notwithstanding
the fact that it was never made the subject
of an inventory or was photographed
pursuant to Section 21 (1) of Republic Act
No. 9165 (David vs. People, Gr No. 181861,
October 17, 2011, Justice Peralta;
Marquez vs. People, G.R. No. 197207,
March 13, 2013; People vs. Morate, GR No.
201156, January 29, 2014; People vs.
Ladip, GR No. 196146, March 12, 2014;
People vs. Bis, GR No. 191360, March 10,
2014).
In People vs. Gonzales, G.R. No.
182417, April 3, 2013 - By way of
exception, Republic Act No. 9165 and its
IRR both state that the non-compliance
with the procedures thereby delineated and
set would not necessarily invalidate the
seizure and custody of the dangerous drugs
provided there were justifiable grounds for
the non-compliance, and provided that the
integrity of the evidence of the corpus
delicti was preserved. But the noncompliance with the procedures, to be
excusable, must have to be justified by the
States agents themselves. Considering that
PO1 Dimla tendered no justification in
court for the non-compliance with the
procedures, the exception did not apply
74 | P a g e
herein. The absolution of accused should

then follow, for we cannot deny that the
observance of the chain of custody as
defined by the law was the only assurance
to him that his incrimination for the very
serious crime had been legitimate and
insulated from either invention or malice. In
this connection, the Court states that the
unexplained non-compliance with the
procedures for preserving the chain of
custody of the dangerous drugs has
frequently caused the Court to absolve
those found guilty by the lower courts.
CHAIN OF CUSTODY As a method
of authenticating evidence, the chain of
custody rule requires that the admission of
an exhibit be preceded by evidence
sufficient to support a finding that the
matter in question is what the proponent
claims it to be. It would include testimony
about every link in the chain, from the
moment the item was picked up to the time
it is offered into evidence, in such a way
that every person who touched the exhibit
would describe how and from whom it was
received, where it was and what happened
to it while in the witness possession, the
condition in which it was received and the
condition in which it was delivered to the
next link in the chain. These witnesses
would then describe the precautions taken
to ensure that there had been no change in
the condition of the item and no
opportunity for someone not in the chain to
have possession of the same (People vs.
Constantino, Jr. GR No. 199689, March 12,
2014).
Thus, the following links must be
established in the chain of custody in a
buy-bust situation: first, the seizure and
marking, if practicable, of the illegal drug
recovered from the accused by the
apprehending officer; second, the turn over
of the illegal drug seized by the
apprehending officer to the investigating
officer; third, the turn over by the
investigating officer of the illegal drug to the
forensic
chemist
for
laboratory
examination; and fourth, the turn over and
submission of the marked illegal drugs
seized from the forensic chemist to the
court (People vs. Constantino, Jr. GR No.
199689, March 12, 2014)
MARKING - Crucial in proving the
chain of custody is the marking of the
seized dangerous drugs or other related
items immediately after they are seized
from the accused, for the marking upon
seizure is the starting point in the custodial
link that succeeding handlers of the
evidence will use as reference point.
Moreover, the value of marking of the
evidence is to separate the marked evidence
from the corpus of all other similar or

related evidence from the time of seizure
from the accused until disposition at the
end of criminal proceedings, obviating
switching, planting or contamination of
evidence. A failure to mark at the time of
taking of initial custody imperils the
integrity of the chain of custody that the
law requires (People vs. Constantino, Jr. GR
No. 199689, March 12, 2014)
The rule requires that the marking
of the seized items should be done in the
presence of the apprehended violator and
immediately upon confiscation to ensure
that they are the same items that enter the
chain and are eventually the ones offered in
evidence. There are occasions when the
chain of custody rule is relaxed such as
when the marking of the seized items
immediately after seizure and confiscation
is allowed to be undertaken at the police
station rather than at the place of arrest for
as long as it is done in the presence of an
accused in illegal drugs cases. However,
even a less-than-stringent application of the
requirement would not suffice to sustain
the conviction in this case. There was no
categorical statement from any of the
prosecution witnesses that markings were
made, much less immediately upon
confiscation of the seized items. There was
also no showing that markings were made
in the presence of the accused in this case
(Lopez vs. People, GR No. 188653, January
29, 2014).
Drug peddling in schools is
prevalent; the scenario attending this case
is likely to be repeated many times. To
impose on school personnel the observance
of the same procedure required of law
enforces (like marking) processes that are
unfamiliar to them is to set a dangerous
precedent that may eventually lead to the
acquittal of many drug peddlers. To our
mind, the evidentiary value of the seized
specimen remains intact as long as the
school personnel who had initial contact
with the drug/s was able to establish that
the evidence had not been tampered with
when he handed it to the police (Marquez
vs. People, G.R. No. 197207, March 13, 2013)
PARAPHERNALIA WITH TRACES
OF SHABU In People vs. Matinez, G.R.
No. 191366, December 13, 2010 - This
Court notes the practice of law enforcers of
filing charges under Sec. 11 in cases where
the presence of dangerous drugs as basis
for possession is only and solely in the form
of residue, being subsumed under the last
paragraph of Sec. 11. Although not
incorrect, it would be more in keeping with
the intent of the law to file charges under
Sec. 15 instead in order to rehabilitate first
time offenders of drug use, provided that
there is a positive confirmatory test result
75 | P a g e
as required under Sec. 15. The minimum

penalty under the last paragraph of Sec. 11
for
the
possession
of
residue
is
imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first
time offenders of drug use is a minimum of
six months rehabilitation in a government
center. To file charges under Sec. 11 on the
basis of residue alone would frustrate the
objective of the law to rehabilitate drug
users
and provide
them with
an
opportunity to recover for a second chance
at life.
In order to effectively fulfill the
intent of the law to rehabilitate drug users,
this Court thus calls on law enforcers and
prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges
when the presence of dangerous drugs is
only and solely in the form of residue and
the confirmatory test required under Sec.
15 is positive for use of dangerous drugs. In
such cases, to afford the accused a chance
to be rehabilitated, the filing of charges for
or involving possession of dangerous drugs
should only be done when another separate
quantity of dangerous drugs, other than
mere residue, is found in the possession of
the accused as provided for in Sec. 15.
PLANTING OF EVIDENCE - 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, 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.
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.
TRAFFICKING IN PERSON
Can accused be convicted of illegal
recruitment and trafficking in person for
the same of act of recruiting a person for
prostitution without violating the rule on
double jeopardy? Yes. When an act or acts
violate two or more different laws and
constitute
two
different offenses, a
prosecution under one will not bar a
prosecution
under
the
other. The
constitutional right against double jeopardy
only applies to risk of punishment twice for
the same offense, or for an act punished by
a law and an ordinance. The prohibition on
double jeopardy does not apply to an act or

series of acts constituting different offenses
(People vs. Lalli, G.R. No. 195419, October
12, 2011).
Is trafficking in persons limited to
transportation of victims? No. Trafficking in
Persons under Sections 3(a) and 4 of RA
9208 is not only limited to transportation of
victims, but also includes the act of
recruitment of victims for trafficking (People
vs. Lalli, G.R. No. 195419, October 12,
2011).
Is recruitment of the victim for
prostitution with her consent or knowledge
constitutive of the crime of trafficking in
person? Yes. The crime of Trafficking in
Persons can exist even with the victims
consent or knowledge (People vs. Lalli, G.R.
No. 195419, October 12, 2011).
ILLEGAL RECRUITMENT
It
is
well-established
in
jurisprudence that a person may be
charged and convicted for both illegal
recruitment and estafa. The reason therefor
is not hard to discern: illegal recruitment is
malum prohibitum, while estafa is mala in
se. In the first, the criminal intent of the
accused is not necessary for conviction. In
the second, such intent is imperative
(People vs. Chua, G. R. No. 187052,
BP BLG. 22
What Batas Pambansa 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 or of
the account against which it was made,
drawn, or issued, or at the intention of the
drawee, maker or issuer. Also, that the
check was not intended to be deposited was
really of no consequence to her incurring
criminal liability under Batas Pambansa
Blg. 22 (Resterio vs. People, G.R. No.
177438. September 24, 2012).
The giving of the written notice of
dishonor does not only supply the proof for
the second element 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).
76 | P a g e
Where the check is drawn by a

corporation, company or entity, the person
or persons who actually signed the check in
behalf of such drawer shall be liable under
this Act." This provision recognizes the
reality that a corporation can only act
through its officers. Hence, its wording is
unequivocal
and mandatory
that
the person
who
actually
signed the
corporate check shall be held liable for a
violation of BP 22. This provision does not
contain any condition, qualification or
limitation (Mitra Vs. People and Tarcelo,
G.R. No. 191404. July 5, 2010)
NOTICE
OF
DISHONOR
IN
ESTAFA CASE - The essential elements of
the felony are: (1) a check is postdated or
issued in payment of an obligation
contracted at the time it is issued; (2) lack
or insufficiency of funds to cover the
check; and (3) damage to the payee
thereof. It is criminal fraud or deceit in the
issuance of a check which is made
punishable under the RPC, and not the
non-payment of a debt. The postdating or
issuing of a check in payment of an
obligation when the offender had no funds
in the bank or his funds deposited therein
are not sufficient to cover the amount of
the check is a false pretense or a
fraudulent
act.
However
deceit
is
presumed if the drawer of the check fails
to deposit the amount needed to cover his
check within three days from receipt of
notice of dishonor.
a. No notice of dishonor - If there
is no notice of dishonor, the prosecution
can still prove the existence of deceit such
as in a case where the accused knows that
his checking account is closed. The receipt
by the drawer of the notice of dishonor is
not an element of the estafa through
bouncing check.
b. With notice of dishonor - If
there
is
notice
of
dishonor,
the
presumption of deceit can still be rebutted
by: (1) proof that the check is issued in
payment of a pre-existing obligation or (1)
evidence of good faith, a defense in estafa
by postdating a check. Good faith may be
demonstrated, for instance, by a debtors
offer to arrange a payment scheme with
his creditor or making full payment of the
entire amount of the dishonored checks.
However, simply empty promise to pay
complainant the value of the bum checks
issued in order to induce her to part with
her property in favor of accused is not an
evidence of good faith that will rebut the
presumption of deceit. (See: People vs.
Ojeda, G.R. Nos. 104238-58, June 3,
2004, Corona; Lopez vs. People, G.R. No.
166810, June 26, 2008, De Castro;

Recuerdo vs. People, G.R. No. 168217,
June 27, 2006, )
sum became due and demandable until

fully paid, stands.
NOTICE OF DISHONOR IN BP
BLG. 22 - Notice of dishonor of a check to
the maker in BP Blg. 22 must be in
writing. A mere oral notice to the drawer
or maker of the dishonor of his check is
not enough. If the maker or drawer pays,
or makes arrangements with the drawee
bank for the payment of the amount due
within the five-day period from notice of
the dishonor given to the drawer, it is a
complete defense; the accused may no
longer be indicted for violation of Section
1, B.P. Blg. 22. If he is so indicted, he may
set up the payment of the amount due as a
complete defense. Assuming that the
accused had knowledge that he had
insufficient funds in the drawee bank
when he issued the questioned checks, he
could still have paid the checks or made
arrangements with the drawee bank for
the payment of the said checks if he had
been duly notified of their dishonor. In not
sending a notice or letter of dishonor to the
petitioner as required by law, the
complaint deprived the accused of his right
to avoid prosecution for violation of B.P.
Blg. 22 (Sia vs. G.R. No. 149695, April 28,
2004).
FULL PAYMENT OF AMOUNT OF

DISHONORED CHECKS - The full
payment of the amount appearing in the
check within five banking days from notice
of dishonor is a complete defense (Lina
Lim Lao v. CA, 274 SCRA 572) regardless
of the strength of the evidence offered by
the prosecution (Meriz vs. People, G.R. No.
134498, November 13, 2001). The accused
has the burden to establish by convincing,
satisfactory and credible evidence that
payment was made within the grace period
(Arceo vs. People, G.R. No. 142641, July
17, 2006). Exceptions: In Griffith vs. Hon.
Court of Appeals, G.R. No. 129764, March
12, 2002 and in Cruz vs. Cruz, G.R. No.
154128, February 8, 2007 considered full
payment of the check after the expiration
of grace period of five days from receipt of
notice of dishonor. The SC in these cases
applied the utilitarian doctrine instead of
the mala prohibita principle. (1) In Griffith,
since the creditor have collected already
more than a sufficient amount to cover the
value of the checks for payment of rentals,
via auction sale, holding the debtors
president to answer for a criminal offense
under B.P. 22 two years after said
collection, is no longer tenable nor justified
by law or equitable considerations. (2)
In Cruz vs. Cruz, petitioner made full
payment of the dishonored check after
eleven (11) days from receipt of notice of
dishonor. Respondent filed the complaint
almost six (6) months after the said
payment.
In San Mateo vs. People, G.R. No.

200090, March 6, 2013 - Complainant tried
to serve the notice of dishonor to the
accused two times. On the first occasion,
complainants counsel sent a demand letter
to accuseds residence at Greenhills, San
Juan which the security guard refused to
accept. Thus, the liaison officer left the
letter with the security guard with the
instruction to hand it to accused. But the
prosecution failed to show that the letter
ever reached accused. On the second
occasion, counsel sent a demand letter to
accused by registered mail which was
returned with the notation "N/S Party Out
12/12/05" and that accused did not claim
it despite three notices to her. Since there is
insufficient proof that accused actually
received the notice of dishonor, the
presumption that she knew of the
insufficiency of her funds cannot arise. For
this reason, the Court cannot convict her
with moral certainty of violation of B.P. 22.
Nevertheless, accuseds acquittal
does not entail the extinguishment of her
civil liability for the dishonored checks. An
acquittal based on lack of proof beyond
reasonable doubt does not preclude the
award of civil damages. For this reason, the
trial courts directive for San Mateo to pay
the civil liability in the amount representing
the total value of the checks plus 12%
interest per annum from the time the said
77 | P a g e
SUSPENSION OF PAYMENT - X in
his capacity as officer of Z corporation
issued a corporate check in favor of A. The
check bounced due to DAIF. Notice of
dishonor was received by X. After three
months, SEC issued order creating the
Management Committee and ordering the
suspension of all pending actions for claims
against Z corporation. (a) Is X liable for
violation of BP Blg. 22?
Answer: Yes. X was formally
notified of the dishonor of the checks.
Yet, it was only more than three
months after, that the SEC issued order
for the suspension of all pending
actions
for
claims
against
Z
corporation. Thus, X was not precluded
from making good the checks during
that three-month gap when he received
the letter and when the SEC issued the
order (Tiong Rosario vs. Co, G.R. No.
133608, August 26, 2008)

if the order of suspension was issued before

the presentment for payment of the check
when the drawee bank and the sending of
notice of dishonor?
Answer: No. X is not liable for
violation of BP Blg. 22. Considering that
there was a lawful Order from the SEC, the
contract is deemed suspended. When a
contract is suspended, it temporarily ceases
to be operative; and it again becomes
operative when a condition occurs - or a
situation
arises
warranting
the
termination of the suspension of the
contract. When a contract is subject to a
suspensive condition, its birth takes place
or its effectivity commences only if and
when the event that constitutes the
condition happens or is fulfilled. Thus, at
the time A presented the check for
encashment, it had no right to do so, as
there was yet no obligation due from X
(Gidwani vs. People, GR No. 195064,
January 15, 2014).
ANTI-GRAFT AND CORRUPT PRACTICES
LAW
Section 3(e) of RA 3019 may be
committed either by dolo, as when the
accused acted with evident bad faith or
manifest partiality, or by culpa, as when
the accused committed gross inexcusable
negligence. There is manifest partiality
when there is clear, notorious, or plain
inclination or predilection to favor one side
or person rather than another. Evident
bad faith connotes not only bad judgment
but also palpably and patently fraudulent
and dishonest purpose to do moral
obliquity or conscious wrongdoing for some
perverse motive or ill will. Evident bad
faith contemplates a state of mind
affirmatively operating with furtive design
or with some motive of self-interest or ill
will or for ulterior purposes. Gross
inexcusable negligence refers to negligence
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but wilfully and intentionally,
with
conscious
indifference
to
consequences insofar as other persons may
be affected (Plameras vs. People, GR No.
187268, September 04, 2013).
The rules, regulations and policies
of the COA and those mandated under
the Local Government Code were knowingly
sidestepped and ignored by the petitioner
which enabled CKL to successfully get full
payment for the school desks and
armchairs, despite non-delivery an act or
omission evidencing bad faith and manifest
partiality. It must be borne to mind that
any procurement or acquisition of supplies
or property by local government units shall
be through competitive public bidding. The
78 | P a g e
petitioner admitted in his testimony that he

is aware of such requirement, however, he
proceeded just the same due to the alleged
advice
of
the
unnamed
DECS
representative that there was already a
negotiated contract a representation or
misrepresentation he willfully believed in,
without any verification. As a Governor, he
must know that negotiated contract can
only be resorted to in case of failure of a
public bidding. As it is, there is no public
bidding to speak of that has been
conducted. Intentionally or not, it is his
duty to act in a circumspect manner to
protect government funds. To do otherwise
is gross inexcusable negligence, at the very
least, especially so, that petitioner acted on
his own initiative and without authorization
from the Provincial School Board (Plameras
vs. People, GR No. 187268, September 04,
2013).
Failure of petitioner as City
Engineer to validate the ownership of the
land on which the canal was to be built
because of his unfounded belief that it was
public land constitutes gross inexcusable
negligence. In his own testimony, petitioner
impliedly admitted that it fell squarely
under his duties to check the ownership of
the land with the Register of Deeds. Yet he
concluded that it was public land based
solely on his evaluation of its appearance,
i.e. that it looked swampy. Moreover, the
undue injury to private complainant was
established. The cutting down of her palm
trees and the construction of the canal were
all done without her approval and consent
(Sanchez vs. People, GR No. 187340,
August 14, 2013).
This crime has the following

essential elements: 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 gross inexcusable negligence;
and 3. His action caused any undue injury
to any party, including the government, or
gave any private party unwarranted
benefits, advantage or preference in the
discharge of his functions (People vs.
Atienza, GR No. 171671, June 18, 2012,
Justice Peralta).
Crime of corruption under Section 3
(e) of RA 3019 may be committed either
by dolo, as when the accused acted with
evident bad faith or manifest partiality, or
by culpa, as when the accused committed
gross inexcusable negligence. There is
manifest partiality when there is a clear,
notorious,
or
plain
inclination
or
predilection to favor one side or person
rather than another. Evident bad faith
connotes not only bad judgment but also

palpably and patently fraudulent and
dishonest purpose to do moral obliquity or
conscious wrongdoing for some perverse
motive or ill will. Evident bad faith
contemplates a state of mind affirmatively
operating with furtive design or with some
motive of self-interest or ill will or for
ulterior purposes. Gross inexcusable
negligence
refers
to
negligence
characterized by the want of even the
slightest care, acting or omitting to act in a
situation where there is a duty to act, not
inadvertently but wilfully and intentionally,
with
conscious
indifference
to
consequences insofar as other persons may
be affected (People vs. Atienza, GR No.
171671, June 18, 2012, Justice Peralta)..
The act of destroying the subject
fences without giving any notice to the
private complainant does not amount to
manifest
partiality and/or evident
bad
faith as indicated in the information. The
same could not be considered evident bad
faith as the prosecution evidence failed to
show that the destruction was for a
dishonest purpose, ill will or self interest.
The fence was destroyed because it is a
tourist spot and it is also a port for the
fishermen (People vs. Atienza, GR No.
79 | P a g e

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2014 BAR REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER

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undo what was done. Offender would not

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sense of security and encouragement on

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murder qualified by employment of means

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No criminal liability is incurred by