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2017 CRIMINAL LAW BAR REVIEWER

JUDGE MARLO B. CAMPANILLA


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1. Generality - If the accused attacks the jurisdiction of the committed therein. However, a coastal state such as the Philippines can
court because of the unique characteristic of his person (e.g. he is a exercise jurisdiction over any crime committed on board such ship in the
foreigner, military, ambassador, President), the applicable principle is following cases: (1) if its consequences extend to the coastal State; (2) if it
generality. If the accused attacks the jurisdiction of the court due to the disturbs the peace of the country or the good order of the territorial sea;
unique characteristic of the place where the crime was committed (e.g. (3) if the ship master or a diplomatic or consular officer of the flag State
foreign vessel, embassy or high sea), the applicable principle is requested assistance from the local authorities; or (4) if it is for the
territoriality. suppression of traffic in narcotic drugs or psychotropic substances.

a. Consular and diplomatic immunity - Consular officers are Murder or serious physical injuries committed in a foreign
immune from criminal prosecution of acts performed in the exercise of vessel anchored in a Philippine port against a passenger thereof is within
function (1967 Convention on Consular Relation). Immunity does not the jurisdiction of the Philippine court since this crime disturb the peace of
cover slander (Liang vs. People, GR No. 125865, January 28, 2000), or the country.
reckless imprudence resulting in homicide for not being function-related. A
Chinese diplomat, who killed another Chinese diplomat in Cebu, is b. Regime of islands - Under the principle of territoriality, the
immune from criminal prosecution (The Vienna Convention on Diplomatic court has also jurisdiction over crime committed in Kalayaan Islands or
Relations). Unlike consular officers, diplomatic agents are vested with Scarboruogh Shoal because the Baseline Law (RA No. 9522) declares
blanket diplomatic immunity from civil and criminal suits (Minucher vs. that the Philippines exercise sovereignty and jurisdiction over it.
Hon. CA, G.R. No. 142396, February 11, 2003).
c. Bigamy - Under the principle of territoriality, the court has
b. Presidential immunity - The presidential immunity is jurisdiction over concubinage involving illicit relationship maintained in the
subject the following conditions: (1) the immunity has been asserted Philippines; but it has no jurisdiction over bigamy involving subsequent
during the period of his incumbency and tenure; and (2) the act marriage contracted in Taiwan.
constituting the crime is committed in the performance of his duties.This
immunity will assure the exercise of presidential functions free from any 3. Extraterritoriality Under the flag state rule, the Philippines
hindrance, considering that the Chief Executive is a job demands has jurisdiction over hijacking of PAL airplane in an American territory
undivided attention (Estrada vs. Desierto, G.R. No. 146710-15, March 2, since it its registered in the Philippines but not over murder committed in
2001). vessel registered in Panama while on high seas although it is owned by a
Filipino. Under the protective principle, the court has jurisdiction over
It is submitted that a Vice-President even during his tenure forgery of Philippine money committed in Taiwan whether by a Filipino or
could not invoke immunity from criminal prosecution for plunder on the an alien but not over forgery of US dollars committed therein. Under the
following reasons: (1) plunder are not his official conducts as Vice- extraterritoriality rule, the court has jurisdiction over plunder, direct bribery
President; (2) the job of the Vice-President unlike the head of the and falsification of document by a public officer in a Philippines consular
executive department does not demands undivided attention; (3) and the premises stationed in America but not corruption of public officer and
implementation principal penalty of imprisonment for plunder is not falsification of document committed by private individual as principal by
inconsistent with the constitutional provision on non-removal of inducement. Under the universality principle, the court has jurisdiction
impeachable officer except through impeachment since he can function as over piracy committed on high seas for being a universal crime but not
Vice-President while serving sentence in prison.However, accessory over murder qualified by the circumstance of taking advantage of the
penalty of disqualification, which involved removal from office, is not calamity brought about by piracy on high seas. The 12-mile territorial
implementable since the enforcement thereof will offend the constitutional water of Taiwan or Sabah may be considered as high seas; hence, piracy
provision on non-removal of impeachable officer. committed therein can be prosecuted in the Philippines (People vs. Lol-Lo
and Saraw, G.R. No. L-17958, February 27, 1922).
c. Parliamentary immunity - An incumbent Senator is not
immune from suit for being a protector or coddler of trading of dangerous 4. Prospectivity -If the court in trying an accused, who
drugs under RA No. 9165. Legislators immunity is confined to committed a crime prior to the passage of the law, should give retroactive
parliamentary privilege from arrest while the Congress is in session in all effect to the law provided that: (1) it is favorable to the accused and (2) the
offenses punishable by not more than 6 years imprisonment and accused is not a habitual delinquent (Article 22 of RPC). If the law repeals
parliamentary immunity from prosecution for libel in connection with any a previous law or provision defining a crime, the applicable principle is not
Congressional speech or debate. Article 22 of RPC but nullum crimen poena sine lege. Since the intention
of the new law is to decriminalize an act punishable by the repealed law,
2. Territoriality The ground occupied by US embassy is in the accused should be acquitted or released if the already convicted, even
fact the territory of the USA to which the premises belong through though he is a habitual delinquent.
possession or ownership. A person who committed a crime within the
premises of an embassy will be prosecuted under the law of Philippines Reclusion perpetua, which has duration of 40 years under
because of the principle of territoriality (Reagan vs. Commission on Article 27 of RPC and 30 years under Article 29 of RPC as amended by
Internal Revenue, 30 SCRA 968). RA No. 10592 if the convict has undergone preventive imprisonment, is a
lighter penalty than life imprisonment, which has no duration. Amendatory
b. Convention of the law of the sea - Under the Convention law, which prescribes reclusion perpetua instead of life imprisonment,
on the Law of the Sea, the flag state of foreign merchant vessel passing shall be given a retroactive effect for being favorable to the accused
through the territorial sea of another state has jurisdiction over crimes (People vs. Morilla, GR No. 189833, February 5, 2014).

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14 days. Hence, he could not have been infected at the time of the stabbing
If a child in conflict, who is a habitual delinquent, committed the since that incident occurred 22 days before the symptoms manifested. The
crime prior to RA No. 9344, he is entitled to retroactive application thereof. infection was an efficient intervening cause breaking the connection
Section 68 of RA No. 9344 expressly provides retroactive application of between the physical injuries and death. Hence, the crime committed is
the privileges to a child in conflict with the law (Atizado vs. People, G.R. physical injuries (Villacorta vs. People, G.R. No. 186412, September 7,
No. 173822, October 13, 2010, Bersamin) without condition. On the other 2011). If the victim was infected by tetanus at the time of stabbing, and the
hand, Article 22 of the Revised Penal Code provides retroactive infection is the proximate cause of death, the crime committed is homicide
application of the favorable law subject to the condition of non-habitual (People vs. Cornel, G.R. No. L-204, May 16, 1947).
delinquency. Since Section 68 of RA No. 9344 is a specific provision while
Article 22 of the Revised Penal Code is a general provision, the latter
yields to the former. Generalia specialibus non derogant. Hence, the b. Offense punishable under special law - Practicing
retroactive effect of RA No. 9344 is unconditional. medicine without license is an offense punishable under special law but
not afelony within the meaning of Article 4 of RPC. Hence, a quack doctor,
5. Decriminalization - RA No. 10158 has decriminalized who killed his patient while treating him, is only liable for reckless
vagrancy by omitting portions of Article 202 of RPC involving this imprudence resulting in homicide (People vs. Carmen, G.R. No. 137268,
crime. Vagrants are victims of poverty and that the law on vagrancy March 26, 2001).
serves to oppress the very people that the government sought to protect.
RA No. 10655 has decriminalized premature marriage by repealing Article If the victim accidentally killed is the owner, driver or occupant
351 of RPC. This provision is discriminatory because it is not applicable to of the carnapped motor vehicle, the crime committed is qualified
men. Moreover, Article 351, which was sought to prevent a possible carnapping or carnapping in the aggravated form under Section 3 of RA
confusion as to who is the father of the child born within the period of 301 No. 10883. If the victim accidentally killed is not the owner, driver or
days after the dissolution of the marriage, is not anymore necessary since occupant of the carnapped motor vehicle, the crimes committed are
paternity and filiation can now be easily determined through modern simple carnapping and homicide. The concept of carnapping is the same
technology. as that of theft and robbery (People vs. Sia, G.R. No. 137457, Nov. 21,
2001). Although not punishable under RPC, it can be treated as a felony
6. Repeal RA No. 10655 has repealed Article 351 of RPC on within the meaning of Article 4 of RPC (See: Dimat vs. People, G.R. No.
premature marriage without reenactment. This is a total repeal in which 181184, January 25, 2012). Hence, the accused is liable for homicide,
the intention of the new law is to decriminalize an act punishable of old which is the direct and natural consequence of simple carnapping.
law. Atotal repeal deprives the courts of jurisdiction to punish persons
charged with a violation of the old penal law prior to its repeal (Sindiong c. Evident premeditation - In case of aberatiu ictus and error
and Pastor, 77 Phil. 1000). RA 8353 expressly repealed Article 336 of in personae, the SC did not appreciate evident premeditation since the
RPC on rape but re-enacted it redefining this crimeunder Article 266-A. victim, who was actually killed, is not contemplated in the premeditation of
This is a partial repealin which the intention of the new law is not to the accused (People vs. Trinidad, G.R. NO. L-38930, June 28, 1988;
decriminalize an act punishable of old law but to introduce changes. The People vs. Mabug-at, 51 Phil., 967). However, praeter intentionem and
effect of the new law is amendatory. This partial repeal of Article 336 does evident premeditation can be independently appreciated. there is no
not deprive the courts of jurisdiction to try and punish offender for rape incompatibility between evident premeditation and no intention to commit
committed prior to RA No. 8353 (U.S. vs. Cana, 12 Phil. 241). RA No. so grave a wrong since the latter is based on the state of mind of the
8353 shall be given prospective effect since it is not favorable to the offender while the former manner of committing the crime (Reyes; People
accused. vs. Enriquez, 58 Phil. 536).

7. Mistake of fact - Authorities, who manned a checkpoint d. Treachery - If accused employed means to render the victim
because of information that there are armed rebels on board a vehicle, defenseless, treachery shall be appreciated even if the killing is due to
have the duty to validate the information, identify them, and to make a error in personae (People vs. Del Castillo, Sr., G.R. No. L-32995, April 30,
bloodless arrest unless they were placed in real mortal danger. If they 1984) or aberratio ictus (People vs. Mabug-at, G.R. No. 25459, August 10,
shot the suspected vehicle, which did not stop after have been flagged 1926, En Banc) or with the circumstance of praeter intentionem (People
down and killed the occupants therein, who turned out be unarmed vs. Cagoco, G.R. No. 38511, October 6, 1933)
civilians, they are liable for multiple homicides. The mistake of fact
principle is not applicable since there is negligence or bad faith on their e. Sense of danger - If a person in committing threat, murder,
part (Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012). rape or robbery creates in the mind of the victim an immediate sense of
danger which causes such person to try to escape, and in so doing he
The accused shot with a firearm and killed by mistake a thief in injures himself, the person who creates such a state of mind is
the toilet, who turned out to be his girlfriend. Invasion of property is responsible for the resulting injuries or death (US vs. Valdez, G.R. No.
considered as unlawful aggression under Article 12 of the RPC because 16486, March 22, 1921; People vs. Toling, G.R. No. L-27097, January 17,
of the self-help doctrine under the Civil Code (People vs. Narvaez, G.R. 1975; People vs. Castromero, G.R. No. 118992, October 9, 1997; People
Nos. L-33466-67, April 20, 1983). Even though there is no actual invasion vs. Arpa, G.R. No. L-26789, April 25, 1969).
of property, unlawful aggression as an element of defense of property will
be considered as present because of the mistake of fact principle. 9. Impossible crime - The crime committed is impossible
However, the means employed by him firing shots through the toilet door crime if the offense sought to be committed is factually or legally
is not reasonable; and hence, he is only entitled to privilege migrating impossible. Killing a dead person is impossible crime because of legal
circumstance of incomplete defense of property (US vs. Apego, G.R. No. impossibility. Putting the hand inside an empty pocket with intention to
L-7929, November 18, 1912). steal a wallet is impossible crime because of factual impossibility (Intod
vs. Court of Appeals, G.R. No. 103119, October 21, 1992).
8. Proximate cause Suicide is not a felony within the
meaning of Article 4 of RPC; hence, a pregnant woman who attempted to Kidnapping for ransom consummates at the precise moment
commit suicide is not liable for abortion due to the consequent death of when the victim was abducted. Receiving ransom payment is not an
the infant. Vexatious act (e.g. pouring gasoline) made as part of fun element of this crime. What is important is that the victim was kidnapped
making is not felony within the contemplation of Article 4. The accused is for purpose of ransom. Since the crime is already consummated, there is
not liable for homicide. However, such act is considered as culpable, and no basis to say that it is impossible to commit this crime (People vs. Tan,
thus, he is liable for reckless imprudence resulting in homicide (People vs. G.R. No. 95322, March 1, 1993). Moreover, kidnapping is a crime against
Pugay, No 74324, November 17, 1988). Vexatious act made out of hate liberty and not against person or property.
(such as putting a robber snake inside the bag of the victim) is unjust
vexation, which is a felony within the contemplation of Article 4. The Firing a gun at the unoccupied bedroom with intention to kill a
accused is liable for homicide if the victim died due to heart attack caused victim constitutes impossible crime because it is factually impossible to kill
by seeing a snake in his bag. a victim, who was not in the bedroom (Intod vs. Court of Appeals, G.R.
No. 103119, October 21, 1992). But throwing grenade at the unoccupied
a. Tetanus - There had been an interval of 22 days between the bedroom, where the victim is supposed to be sleeping, constitutes arson if
date of the stabbing and the date when victim was rushed to hospital, the bedroom was burned as a consequence.
exhibiting symptoms of tetanus infection. Since infection is severe, he died
the next day. The incubation period of severe tetanus infection is less than

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A discharged shotgun at B from a distance of 300 yards; but be merely imaginary, but must be offensive and positively strong (like
because of the limited range of the firepower of the shotgun, it would be aiming a revolver at another with intent to shoot or opening a knife and
impossible for A to harm B. A is liable of discharge of firearm and not making a motion as if to attack). Imminent unlawful aggression must not
impossible crime. Where the offender unlawful entered the house and be a mere threatening attitude of the victim, such as pressing his right
took a watch that turned out to be his own, he is liable for trespass to hand to his hip where a revolver was holstered, accompanied by an angry
dwelling and not impossible crime (Criminal Law Conspectus by Justice countenance, or like aiming to throw a pot (Rustia vs. People, G.R. No.
Florenz Regalado). If the accused administered abortive drugs upon his 208351, October 05, 2016, Bersamin).
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 12. Battered woman syndrome -The essence of this defense
liable for serious physical injuries and not impossible crime of abortion of Battered Woman Syndrome as a defense is that battered woman, who
(Criminal Law Reviewer by Gregorio). suffers from physical and psychological or emotional distress, is acting
under an irresistible impulse to defend herself although at the time of
a. Gender crime - Gender is an element of all crimes against commission of the crime the battererhad not yet committed unlawful
chastity except acts of lasciviousness. In seduction and consented acts of aggression. That is why Battered Woman Syndrome is a defense
lasciviousness, and abduction, the offender must be a man, while the notwithstanding the absence of any of the elements for justifying
victim must be a woman. The offender in adultery must be a married circumstances of self-defense such as unlawful aggression (Section 26 of
woman, while in concubinage a married man. If the element of gender is RA No. 9262). This Syndrome refers to a scientifically defined pattern of
not present in a crime against chastity, it is impossible to commit this psychological and behavioral symptoms found in women living in battering
crime (e.g. it is impossible to commit abduction against a person, who is relationships as a result of cumulative abuse (Section 3).
gay). Despite the impossibility of its commission, the accused is not liable
for impossible crime. To be held liable for impossible crime, the act which The three phases of the Battered Woman Syndrome are: (1)
is impossible to commit must constitutes crime against person or the tension-building phase; (2) the acute battering incident; and (3) the
property.However, abduction is a crime against chastity. But the accused tranquil, loving or non-violent phase (People vs. Genosa, G.R. No.
may be held liable for illegal detention. 135981, January 15, 2004). The basis of the irresistible impulse to make a
defense against the batterer is the womans experiencing two battering
A person, who has sexual intercourse with a woman not episodes.
knowing that she was already dead,is liable for impossible crime since
rape is now a crime against person. However, if he is aware that the The elements of Battered Woman Syndrome as a defense are
woman is already dead, he is not liable for impossible crime since criminal as follows: (1) the woman is subjected to cumulative abuse by the victim,
intent or propensity to rape, which is the basis of penalizing impossible with whom she has marital, sexual or dating relationship; and (2) the
crime, is wanting. cumulative abuse or battery is the act of inflicting physical harm resulting
to physical and psychological or emotional distress. Since the abuse must
If the gender element in rape through sexual intercourse is not be cumulative, there must be at least two episodes involving the infliction
present, the offender is not liable for impossible crime. Although it is of physical harm. If the first episode is infliction of physical harm and the
impossible to commit rape through sexual intercourse where the victim is second episode is verbal abuse, the accused cannot avail Battered
a gay, such acts constitute acts of lasciviousness. Woman Syndrome as a defense.

b. Unfunded check - If the check is unfunded, stealing the 13. Imbecility and minority Mental retardation includes (a)
checkand presenting it for payment with the bank constitute impossible idiot, whose mental age is two-year old; (b) imbecile, whose mental age is
crime. It is factually impossible to accomplish the crime of qualified theft seven-year old; (c) moron or feebleminded, whose mental age is twelve-
since the check is unfunded(Jacinto vs. People, G.R. No. 162540, July 13, year old and (d) borderline intelligence (People vs. Butiong, G.R. No.
2009). If the check is funded, stealing the check and presenting it for 168932, October 19, 2011 Bersamin; People vs. Bayrante, G.R. No.
payment with the bank is not impossible crime. Even if the accused failed 188978, June 13, 2012).
to encash the same due to external cause such as apprehension by police
or stop payment, he will be held liable for consummated theft. In theft, In rape, there is a difference between actual age and mental
taking property with intent to gain consummates the crime. Actual gain is age. In statutory rape, the actual age of the victim must be under 12 years
not an element thereof. Thus, failure to gain will not prevent the old. In rape against a person deprived of reason, the mental age of the
consummation of the crime (See: People vs. Seranilla, G.R. No. L-54090, victim is 2 years old (idiot), 7 years old (imbecile), 12 years old
May 9, 1988); (feebleminded) or above 12 years old but suffering from borderline
intelligence (People vs. Butiong, supra; People vs. Bayrante, supra).
10. Indeterminate offense - Climbing on top of the naked
victim, touching her genitalia and mashing her breastsaresusceptible of In exempting circumstance, there is a difference between
double interpretation (People v. Lamahang). His intention is either to rape actual age and mental age. In exempting circumstance of imbecility, what
or seduce her. Hence, the accused cannot be held liable for attempted is important is the mental age of the accused. An idiot, whose mental age
rape because intent to have sex is not clear. He is only liable for acts of is 2 years, and imbecile, whose mental age is 7 years old (People vs.
lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014, Butiong, G.R. No. 168932, October 19, 2011, Bersamin) are exempt from
Bersamin). criminal liability. A feebleminded, whose mental age is 12 years old, is not
exempt from criminal liability since he is not an imbecile (People vs.
Inflicting non-mortal wound upon the victim by shooting him Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to mitigating
constitutes physical injuries if the accused did not further shoot him to circumstance of mental illness (People vs. Formigones, G.R. No. L-3246,
inflict mortal wounds. The crime is not attempted homicide because failure November 29, 1950). In exempting circumstance of minority under Section
to shoot him further shows lack of intent to kill. Moreover, spontaneous 6 of RA No. 9344, what is important is the chronological or actual age of
desistance from further shooting to victim to inflict mortal wounds is a the accused. If the actual age of the accused is 18 years old and mental
defense in attempted homicide (Pentecostes, Jr. vs. People, GR No. age is 9 years old, the exempting circumstance of minority and imbecility
167766, April 7, 2010). But inflicting mortal wound upon the victim shall not be appreciated (People vs. Roxas, G.R. No. 200793, June 04,
constitutes frustrated homicide (De Guzman vs. People, G.R. No. 178512, 2014).
November 26, 2014, Bersamin) even if the accused desisted from further
shooting him. The fact that the wounds are mortal indicates intent to kill. Under Section 5 (b) of RA No 7610, when the child subjected
Moreover, spontaneous desistance from further shooting is not a defense to sexual abuse is under 12 years of age, the perpetrators shall be
in frustrated homicide (People vs. Abella, G.R. No. 198400, October 07, prosecuted for rape and acts of lasciviousness under RPC. For purpose of
2013). Section 5 (b), there is no difference between actual age and mental age.
Hence, the victim whose actual age is 12 years old but her mental age is 9
11. Self-defense - Unlawful aggression is of two kinds: (a) years old, is considered as a victim under 12 year of age within the
actual or material unlawful aggression; and (b) imminent unlawful contemplation of Section 5 (b) (People vs. Pusing, G.R. No. 208009, July
aggression. Actual or material unlawful aggression means an attack with 11, 2016),
physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury. Imminent 14. Insanity - The presumption, under Article 800 of the Civil
unlawful aggression means an attack that is impending or at the point of Code, is that every human is sane. Anyone who pleads the exempting
happening; it must not consist in a mere threatening attitude, nor must it circumstance of insanity bears the burden of proving it with clear and
convincing evidence (People vs. Tibon, G.R. No. 188320, June 29, 2010).
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There are two tests (People vs. Formigones, G.R. No. L-3246, November Jacinto, G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R. No.
29, 1950) to determine whether the mental condition of the accused is 199270, October 21, 2015).
exempting or mitigating:
An accused, who is under 18 years of age at the time of the
a. Test of cognition Under the test of cognition, the mental commission of the crime, is a child in conflict with the law. He will not be
condition of the accused is an exempting circumstance of insanity if there deprived of privileges under the law even though he reaches age of
was a complete deprivation of intelligence in committing the criminal act majority at time of rendition of judgment. Exception: While Section 38 of
(People vs. Bulagao, G.R. No. 184757, October 05, 2011); or mitigating RA 9344 provides suspension of sentence can still be applied even if the
circumstance of mental illness if there was only a partial deprivation of child is already 18 years of age at the time of conviction. However,
intelligence (People vs. Puno, G.R. No. L- 33211, June 29, 1981). After Section 40 limits the suspension of sentence until the child reaches the
satisfying his lust, accused threatened the victim. This implies that age of 21 (People vs. Gambao, GR No. 172707, October 01, 2013;
accused knew what he was doing, that it was wrong, and wanted to keep People vs. Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs.
it a secret. It also indicated that the crime was committed during one of his People, G.R. No. 176102, November 26, 2014, Bersamin).
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). 3. If the accused is an adult, application for probation must be
filed within the period of perfecting an appeal (Section 4 of PD No. 968 or
b. Test of volition Under the test of volition, the mental Probation Law). However, the accused is a child in conflict with the law,
condition of the accused is a mitigating circumstance of mental illness if application for probation may be filed at any time (Section 42 of RA No.
there is complete or partial deprivation of freedom. In sum, if a sex maniac 9344). In sum, it can be filed even beyond the period of perfecting an
or homicidal maniac had merely passed the volition test but not the appeal or even during the pendency of an appeal.
cognition test, he will only be given the benefit of mitigating circumstance
of illness. Diminution of freedom is enough to mitigate the liability of the Under Section 9 of PD 968, one, who is sentenced to suffer a
offender suffering from illness (See: People vs. Rafanan, Jr. November penalty (or maximum indeterminate penalty) of more than 6 years, is not
21, 1991, G.R. No. 54135, November 21, 1991). Thus, kleptomania is a qualified to apply for probation. However, under Section 70 of RA No.
mitigating circumstance of mental illness. 9165, a first time minor offender can apply for probation for the crime of
possession or use of dangerous drug even if the penalty is higher than 6
Irresistible homicidal impulse in People vs. Bonoan G.R. No. years of imprisonment. But Section 70 of RA 9165 is not applicable sale of
45130, February 17, 1937, which is an exempting circumstance is not dangerous drugs. Section 24 of RA No. 9165 disqualifies drug traffickers
anymore controlling. Irresistible homicidal impulse, which is based on the and pushers for applying for probations although the accused is a minor.
volition test, is only a mitigating circumstance. To exempt a person from The law considers the users and possessors of illegal drugs as victims
criminal liability due to insanity, the controlling rule is cognition testand not while the drug traffickers and pushers as predators (Padua vs. People,
the volition test(People vs. Opuran, G.R. Nos. 147674-75, March 17, G.R. No. 168546, July 23, 2008).
2004). In several Supreme Court cases, the pleas of insanity of accused
who are suffering from schizophrenia or psychosis were rejected because 4. The child in conflict with the law may, after conviction and
of failure to pass the cognition test. (People vs. Medina, G.R. No. 113691, upon order of the court, be made to serve his sentence, in lieu of
February 6, 1998; People vs. Pascual, G.R. No. 95029, March 24, 1993). confinement in a regular penal institution, in an agricultural camp and
other training facilities in accordance with Section 51 of RA No. 9344
15. Child in conflict with the law -The rights and privileges of (People vs. Arpon, G.R. No. 183563, December 14, 2011; People vs.
a child in conflict with the law are as follows: Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No.
176102, November 26, 2014, Bersamin).
1. If the accused is 15 years of age or below, minority is an
exempting circumstance (Section 6 of RA No. 9344). Lack of discernment 5. A convict is entitled to a full or 4/5 credit of his preventive
is conclusively presumed. If the child is above 15 years of age, minority is imprisonment (Article 29 of RPC). However, if the convict is a child in
an exempting circumstance if he acted without discernment, or privilege conflict with the law, he shall be credited in the services of his sentence
mitigating circumstance if he acted with discernment. This privilege the full time spent in actual commitment and detention (Section 41, RA
mitigating circumstance shall be appreciated even if minority was not 9344; Atizado vs. People, G.R. No. 173822, October 13, 2010,
proved during the trial and that his birth certificate was belatedly Bersamin).
presented on appeal (People vs. Agacer, G.R. No. 177751, January 7,
2013) and even if the penalty is reclusion perpetua to death (People vs. 16. Status offense Status offenses such as curfew
Ancajas, G.R. No. 199270, October 21, 2015). violationrefers to offenses which discriminate only against a child, while an
adult does not suffer any penalty for committing similar acts (Section 3 of
2. Ifthe accused is 15 years of age or below but above 12 RA No. 9344). In sum, a status offense is a crime where minority of the
years, shallbe considered as a neglected child. Neglected child shall be offender is an element. A child shall not be punished for committing a
mandatorily placed in a youth care facility or Bahay Pag-asa in the status offense (Section 57). Under Section 57-A, local ordinances on
following instances: (a) If the child commits serious crimes such as status offenses shall be for the protection of children. For committing
parricide, murder, infanticide, rape, kidnapping and serious illegal status offense, children recorded as a child at risk shall be brought to their
detention with homicide or rape, robbery with homicide or rape, residence or to any barangay official at the barangay hall to be released to
destructive arson, or carnapping where the driver or occupant is killed or the custody of their parents instead of being penalized.
raped or offenses involving dangerous drugs punishable by more than 12
years of imprisonment; and (b) In case of repetition of offenses and the 17. Exempting circumstance of relationship - The
child was previously subjected to a intervention program and his best absolutory cause of relationship under Article 332 of RPCapplies to theft,
interest requires involuntarily commitment. swindling and malicious mischief. It does not apply to theft through
falsification or estafa through falsification. It includes step-relationship and
In case of commission of serious crime, a petition for in-laws relationship.There are two viewson whether death of his wife
involuntarily commitment shall be filed by social worker in court. In case of dissolves the relationship by affinity of the husband with his mother-in-law
repetitionof offenses, his parents or guardians shall execute a written for purpose of absolutory cause. The first holds that relationship by affinity
authorization for the voluntary commitment. However, if the child has no terminates after the death of the deceased spouse, while the second
parents or guardians or if they refuse or fail to execute such authorization, maintains that relationship continues. The principle of pro reo calls for the
the proper petition for involuntary commitment shall be immediately filed adoption of the continuing affinity view because it is more favorable to the
social worker in court; but the child may be subjected to intensive accused (Intestate estate of Gonzales vs. People, G.R. No. 181409,
intervention program supervised by the local social officer instead of February 11, 2010). The term spouses in Article 332 embraces common-
involuntary commitment (Section 20-A and 20-B of RA 9344 as amended law spouses. The basis of this ruling is the rule on co-ownership over
by RA 10630). properties by common-law spouses (People vs. Constantino, No. 01897-
CR, September 6, 1963, 60 O.G. 3603).
3. If the child is found guilty, the court shall place him under
suspended sentence, without need of application instead of pronouncing 18. Voluntary confession - A plea of guilty made after the
judgment of conviction (Section 38 of RA 9344). The law makes no prosecution had begun presenting its evidence cannot be considered
distinction as to the nature of offense by the child. The Senate debate voluntary since it was made only after the accused realized that the
discloses that the suspension is applicable to heinous crime (People vs.

Page 4 of 25
evidence already presented by the prosecution is enough to cause his RA No. 3019 (Go vs. The Fifth Division, Sandiganbayan, G.R. No.
conviction (People vs. Montinola, G.R. No. 131856-57, July 9, 2001). 172602, April 13, 2007). Even if the public officer, with whom the private
individual allegedly conspired, died, the latter can still be prosecuted for
19. Allegation of aggravating circumstances - It is now a violation of RA No. 3019. Death extinguishes the criminal liability but not
requirement that the aggravating or qualifying circumstances be expressly the crime. Hence, if there is proof of the crime and conspiracy between
and specifically alleged in the complaint or information. Otherwise, they the dead public officer and private individual, the latter can still be
cannot be considered by the trial court in its judgment, even, if they are convicted of violation of RA No. 3019 (People vs. Go, GR NO. 168539,
subsequently proved during trial (Sombilon, Jr. vs. People, G.R. No. March 25, 2014). However, if the public officer with whom the private
175528, September 30, 2009). This procedural rule has a retroactive individual allegedly conspired is acquitted, the latter should also be
application because of pre reo (People vs. Dadulla, G. R. No. 172321, acquitted (Marcos vs. Sandiganbayan, G.R. No. 126995, October 6,
February 9, 2011, Bersamin). 1998).

20. Nighttime - Nighttime is aggravating if the accused took Mayor, treasurer and planning coordinator approved the
advantage of the darkness of the night (People vs. Banhaon, G.R. No. overpayments in favor of a private individual for the construction of public
131117, June 15, 2004) or silence of the night e.g. the accused take market. The public officers caused undue injury to the government
advantage of the fact that the victims and neighbors were sleeping through manifest partiality and evident bad faith in violation of Section 3
(People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004). (e) of RA No. 3019. The private individual, who was overpaid, is also liable
on the basis of conspiracy and Go vs. Fifth Division of the Sandiganbayan
21. Band - In robbery, band is a special aggravating (Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010; Uyboco vs.
circumstance under Article 295 of RPC. In robbery with homicide or rape, People, G.R. No. 211703, December 10, 2014).
band is an ordinary aggravating circumstance under Article 14.
24. Accomplice - Lending weapon such a gun to a killer for
22. Exploitation of minor The special aggravating purpose of killing a specific person such as Pedro is an act of accomplice.
circumstance of exploitation of minor under RA No. 9344is present if the But if the killer used the weapon in killing a different person such as Juan,
accused makes use, takes advantage of, or profits from the use of the lender is not liable as an accomplice. To be held liable as an
children, or abuses his authority over the child or takes advantage of the accomplice, it is important that that he knows and concurs in the criminal
vulnerabilities of the child with abuse of confidence or induce, threaten or design of the principal (community of design) and participates before or
instigate the commission of the crime. The concept of exploitation of during the commission of the crime by supplying moral or material aid in
children is comprehensive enough to cover the circumstance of with the an efficacious way. In this case, the lender concurred in the killing of
aid of minor under 15 years of age under RPC. Pedro but not Juan. Hence, he is not liable as an accomplice. If the killer
used another weapon such as knife instead of the gun borrowed in killing
23. Conspiracy - It is immaterial whether appellant acted as a Pedro, the lender is not liable as an accomplice. Although the lender
principal or as an accomplice because the conspiracy and his participation concurred in the killing of Pedro, he did not supply the killer material or
therein have been established. In conspiracy, the act of one is the act of moral aid in an efficacious way since the weapon used is not the one
all and the conspirators shall be held equally liable for the crime (People borrowed from him.
vs. Siongco, G.R. No. 186472, July 5, 2010).
25. Fencing In fencing, the property, which the accused
a. Disassociation - To exempt himself from criminal liability, a possesses with intent to gain, must be derived from the proceeds of theft
conspirator must have performed an overt act to dissociate or detach or robbery (Ong vs. People, GR No. 190475, April 10, 2013). The concept
himself from the conspiracy to commit the felony and prevent the of carnapping is the same as that of theft or robbery (People vs. Sia, G.R.
commission thereof (People vs. Ebet, G.R. No. 181635 November 15, No. 137457, November 21, 2001). Thus, carnapping can be considered as
2010). A conspirator, who ran away from the scene of the crime prior to within the contemplation of the word theft or robbery in PD No. 1612
the commission of robbery with homicide by his co-conspirator, is not (Dimat vs. People, G.R. No. 181184, January 25, 2012). If the property is
liable because the former dissociated himself from the conspiracy. derived from the proceeds of malversation or estafa, fencing is not
committed. But the accused can be held liable as an accessory if he
Conspirators are all liable for robbery although not all profited profited or assisted other to profit from this misappropriated property.
and gained from the robbery. When a conspirator committed homicide by
reason of or on the occasion of the robbery, his co-conspirators are liable Actual knowledge that the property is stolen is not required.
for special complex crime of robbery with homicide, unless they Fencing is committed is the accused should have known that the property
endeavored to prevent the killing (People vs. Ebet, GR No. 181635, is stolen taken into consideration the attending circumstances such as (1)
November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009; the price of the property is so cheap; (2) expensive jewelry is being
People vs. Diu, GR No. 201449, April 03, 2013) or they cannot prevent the offered for sale at midnight in a street; (3) accused knew that the car he
killing since they are not aware thereof (People vs. Corbes, G.R. No. bought was not properly documented (Dimat vs. People, supra); or (4)
113470, March 26, 1997). This rule is applicable to special complex crime new tires are being peddled in the streets by an unknown seller (Ong vs.
of kidnapping with rape (People vs. Anticamaray, GR No. 178771, June People, supra). Furthermore, mere possession of stolen property shall be
08, 2011) or robbery with rape (People v. Suyu, G.R. No. 170191, August prima facie evidence of fencing (Section 6 of PD No. 1612).
16, 2006; People v. Canturia, G.R. No. 108490 June 22, 1995).
26. Obstruction of justice Obstruction of justice can only be
b. Multiple rapes - If there is conspiracy to commit rape, committed by a person other than the one being investigated or tried in a
each of conspirators is responsible not only for the rape committed criminal proceeding. Although this is not expressly required in PD No.
personally by him but also for the rape committed by the other as well 1829 to make one liable for obstruction of justice, a principal himself
(People vs. Lascano, G.R. No. 192180, March 21, 2012). cannot be held liable for obstruction of justice (Angeles vs. Gaite, G.R No.
165276, November 25, 2009).
c. Offense under special law - B.P. Blg. 22 does not
expressly proscribe the supplementary application of the provisions RPC The criminal actor, who threwthe body of murdered victim into
including the rule on conspiracy. Hence, such rule may be applied the river to destroy the corpus delicti, is liable for murder qualified by the
supplementarily. Thus, a non-issuer of bum check can be held liable for circumstance of employment of means to afford impunity.The one who
violation of BP Blg. 22 on the basis of conspiracy. (Ladonga vs. People, assisted in in throwing the body is liable as an accessory to murder for
G.R. No. 141066, February 17, 2005). The principle of conspiracy may be destroying the body of the crime to prevent its discovery (People vs.
applied to RA No. 9262. Thus, a person (such as mother-in-law), who has Devaras, G.R. Nos. 100938-39, December 15, 1993)or a principal in the
no marital, sexual or dating relationship with the victim, can be held liable crime of obstruction of justice for destroying it to impair its availability as
for violence against woman on the basis of conspiracy (Go-Tan vs. Go, evidence in a criminal proceeding.
G.R. No. 168852, September 30, 2008)
The accused cannot be prosecuted both as an accessory for
If there is conspiracy, the act of the public officer in violating murder and as principal for obstruction of justice. The penalty prescribed
RA No. 3019 is imputable to the private individual although there are not for obstruction of justice under PD No. 1829 is prision correccional in its
similarly situated in relation to the object of the crime. Moreover, Section 9 maximum period unless other law prescribed a higher penalty. Thus, the
provides penalty for public officer or private person for crime under offender may be prosecuted for murder as accessory with the penalty of
Section 3. Hence, a private individual can be prosecuted for violation of prision mayor or for obstruction of justice as principal also with the penalty

Page 5 of 25
of prision mayor, since this penalty is higher than that prescribed under 29. Special time allowance for loyalty (STAL) If detention
PD No. 1829. The intention of the law in prescribing a fixed penalty or that prisoner or convicted prisoner escapes during the calamity, and
provided by other law such as RPC, whichever is higher, is not to subsequently surrenders within 48 hours from the time the President
prosecute the offender for obstruction of justice and for other crime arising announces the passing away of such calamity, he is entitled to 1/5 special
from the same act such as destroying the body of the crime. time allowance for loyalty (STAL) under Article 98 of RPC as amended by
RA No. 10592; if the convicted prisoner did not surrender within the
After the discovery of illegal possession of lumber, the accused period, he is liable for evasion of sentence under Article 158 of RPC
unlawfully took the truckused to commit the crime from the authorities. He punishable by penalty equivalent to one-fifth of the time still remaining to
is not liable as an accessory since he did not conceal the instrument of the be served under the original sentence, which in no case shall exceed six
crime for the purpose of preventing the discovery thereof. Crime was months; if the detention prisoner did not surrender within the period, he is
already discovered when the concealment was made. However, he is not liable for evasion of sentence. Only convicted prisoner can commit
liable for obstruction of justice for concealing the truck to impair its evasion of service of sentence because a detention prisoner is not serving
availability as evidence in the criminal proceeding for illegal possession of sentence, which he can evade.
lumber (Padiernos vs. People, G.R. No. 181111, August 17, 2015).
In case of the prisoner chose to stay in the place of his
To be held liable as an accessory, the person harbored, confinement notwithstanding the existence of a calamity, he is entitled to
concealed, or assisted to escape must be principal of the crime and the 2/5 STAL (Article 98 of RPC as amended by RA No. 10592). A prisoner
crime committed must be treason, parricide, murder,or an attempt to take who did not escape despite of the calamity manifests a higher degree of
the life of the Chief Executive, or other crime where act was committed loyalty to the penal system than those who evaded their sentence but
with abuse of public function or the principal is a habitual delinquent. To thereafter gives themselves up upon the passing away of the calamity.
be held liable as a principal in obstruction of justice, the one harbored, Hence, prisoners, who did not escape, are entitled to a higher special time
concealed, or assisted to escape is any person(such as principal or allowance.
accomplice)and the crime committed is any offense under existing law.
However, prisoner is not entitled to STAL if he has committed
The exempting circumstance of relationship under Article 20 of other offense or any act in violation of the law.
RPC can be appreciated in favor of an accessory to a felony but not in
favor of an accused in the crime of obstruction of justice since he is being 30. Special complex crime Raping the victim or inserting
prosecuted as principal and not as an accessory. instrument in her anal orifice after treacherously inflicting mortal wounds is
not a special complex crime of rape with homicide because the original
Light felony is punishable except when the accused is merely design of the victim is kill and not to rape the victim. The crime committed
an accessory (Article 16 of RPC) or when it is at the attempted or is murder qualified by treachery and rape shall be regarded either as
frustrated stage unless it is a crime against property or person (Article 7). ignominy or cruelty (People vs. Laspardas, G.R. No. L-46146, Oct. 23,
However, obstruction of justice can be committed even though the crime 1979) or sexual assault shall be treated as cruelty (People vs. Bernabe,
under investigation is a light felony. G.R. No. 185726, October 16, 2009).

An accused can be convicted as an accessory to a felony a. Special rule for kidnapping with homicide - Where the
although the principal was not convicted because the latter was at large, person kidnapped is killed in the course of the detention, regardless of
unidentified or dead (Vino vs. People, G.R. No. 84163, October 19, 1989). whether the killing was purposely sought or was merely an afterthought,
The corresponding responsibilities of the principal, accomplice, and the accused is liable for a special complex crime of kidnapping with
accessory are distinct from each other. As long as the commission of the homicide (People vs. Mercado, G.R. No. 116239, November 29, 2000;
offense can be duly established in evidence, the determination of the People vs. Ramos, G.R. No. 118570, October 12, 1998; People vs.
liability of the accomplice or accessory can proceed independently of that Larranaga, 138874-75, February 3, 2004; People vs. Montanir, GR No.
of the principal (People vs. Bayabos, G.R. No. 171222, February 18, 187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949, July 23,
2015). 2014). However, if the derivation of liberty is just incidental to the
transportation of the victim to the place where he will be executed, the
27. Credit of preventive imprisonment Credit for preventive crime is murder. Kidnapping with homicide is not committed because of
imprisonment is full if the detention prisoner executed detainees lack of intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655,
manifestation, which is a written declaration of a detained prisoner, with July 22, 2009).
the assistant of a counsel, stating his willingness to abide by the same
disciplinary rules imposed upon a convicted prisoner for the purpose of b. Doctrine of absorption - In robbery with homicide, all
availing the full credit of the period of his preventive imprisonment. other felonies such as rape, intentional mutilation, usurpation of authority,
or direct assault with attempted homicide are integrated into this special
Credit for preventive imprisonment is 4/5 if the detention complex crime. This special complex crime is committed as long as death
prisoner executed detainees waiver, which is a written declaration of a results by reason or on occasion or robbery without reference or
detained prisoner, with the assistant of a counsel, stating his refusal to distinction as to the circumstances, causes or modes or persons
abide by the same disciplinary rules imposed upon a prisoner convicted intervening in the commission of the crime(People vs. De Leon, GR No.
by final judgment. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05,
2016).
There is no credit if the accused is recidivist; has been
convicted previously twice or more times of any crime; or has failed to c. Homicide component - In robbery with homicide, it is
surrender voluntarily before a court of law upon being summoned for the immaterial that the victim of homicide is a bystander (People vs. Barut,
execution of his sentence (Article 29 of RPC as amended by RA No. G.R. No. L-42666 March 13, 1979), a responding police (People vs.
10592). Pelagio, G.R. No. L-16177, May 24, 1967) or one of the robbers (People
vs. De Leon, GR No. 179943, June 26, 2009;People vs. Jugueta, G.R.
If the offender is a child, the applicable rule for crediting the No. 202124, April 05, 2016).
period of commitment and detention is not Article 29 of RPC but Section
41, RA 9344, which provides that the full time spent in actual commitment The phrase by reason of the rape obviously conveys the
and detention of juvenile delinquent shall be credited in the services of his notion that the killing is due to the rape, which is the crime the offender
sentence. originally designed to commit. The victim of the rape is also the victim of
the killing. In contrast, the phrase on the occasion of the rape as shown
28. Immediate release If the period of preventive by Senate deliberations refers to a killing that occurs
imprisonment is equal to the imposable maximum imprisonment of the immediately before or after,or during the commission itself of the rape,
offense charged, the detention prisoner shall be released immediately where the victim of the homicide may be a person other than the rape
without prejudice to the continuation of the case, except for the following: victim (People vs. Villaflores, G.R. No. 184926, April 11, 2012, Bersamin;
1) recidivist; 2) habitual delinquent; 3) escapee; and 4) person charged People vs. Laog, G.R. No. 178321, October 5, 2011).
with heinous crimes. Such period shall include good conduct time
allowance (Article 29 of RPC as amended by RA No. 10592). In robbery with homicide, it is immaterial that victim is killed by
the responding police and not by the robber (People vs. Ombao, G.R. No.
L-30492, February 26, 1981). But in attempted robbery with homicide, the

Page 6 of 25
offender must be guilty of both crimes. Hence, attempted robbery with intimidation with aggravating circumstance of disregard of dwelling
homicide is not committed where the victim was killed by a co-passenger (People vs. Tejero, G.R. No. 128892 June 21, 1999; People vs.
and not by the robber (People vs. Manalili, G.R. No. 121671, August 14, Evangelio, G.R. No. 181902, August 31, 2011). When the elements of
1998). both robbery with homicide and robbery by using force upon thing
(unlawful entry) are present, the former shall absorb the latter. In sum,
Ordinarily, homicide means killing another person. In sum, the robbery by using force upon thing committed on occasion of robbery by
person responsible for the death of the victim must be the offender. But in means of violence or intimidation shall be integrated into the special
the case of People vs. Arpa, G.R. No. L-26789, April 25, 1969, the victim complex crime of robbery with homicide (People vs. De Leon, GR No.
himself, who jumped from boat, is responsible for his own death, and yet, 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05,
the SC convicted the accused of robbery with homicide. In other words, 2016). But aggravating circumstances of disregard of dwelling and
death caused by the victim himself is considered as homicide, which is a unlawful entry shall be both appreciated (People vs. Lamosa, G.R. No.
component of robbery with homicide. Hence, suicide or death caused by 74291-93, May 23, 1989).
the victim herself can be considered as homicide as a component of
special complex crime of rape with homicide. 31. Compound crime - The single act of rolling the hand
grenade on the floor of the gymnasium which resulted in the death of
d. Violence or intimidation in taking the property - If the victims constituted a compound crime of multiple murders (People vs.
taking of property is not committed by means of violence or intimidation, Mores, GR No. 189846, June 26, 2013). Wherethe use of grenade render
Article 294 of RPC is not applicable. Taking without violence or the victim defenseless, use of explosives shall be considered as a
intimidation constitutes theft. If after the taking of property by means of qualifying circumstance because this is the principal mode of attack. Thus,
violence or intimidation, the robber killed a responding police officer, the treachery will be relegated merely as a generic aggravating circumstance
former is liable for robbery with homicide (People vs. Pelagio, G.R. No. L- (People vs. Comadre, et al., G.R. No. 153559, June 8, 2004). The single
16177, May 24, 1967). If after the taking of the roasters without violence act of running over the victims with a van constitutes compound crime of
or intimidation, the thief killed responding police officer, he is liable for multiple murders (People vs. Punzalan, Jr., G.R. No. 199892, December
theft and direct assault with homicide (People vs. Jaranilla, G.R. No. L- 10, 2012).
28547, February 22, 1974). If after the snatching of the complainants bag
without violence or intimidation, a co-robber crashed the getaway a. Single act treated as several acts - Single act of pressing
motorcycle and died, the accused is only liable for theft (People vs. the trigger of Thompson or armalite is treated as several acts as many as
Concepcion, G.R. No. 200922, July 18, 2012). there are bullets fired from gun. Because of special mechanism of
Thompson, the single act of pressing its trigger will cause the continuous
e. Direct connection - After consummation of robbery, firing of bullets. Thus, accused is liable as many homicides as there are
passengers reported the matter to the police authorities. During the victims (People vs. Desierto, (C.A.) 45 O.G. 4542; People vs. Sanchez,
manhunt operation, one of the police officers was killed by a robbery. The G.R. No. 131116, August, 27, 1999; People vs. Tabaco, G.R. Nos.
crime committed is not robbery with homicide since the connection 100382-100385 March 19, 1997; People v. Vargas, Jr., G.R. No. 86728,
between the two crimes was not a direct connection" (People vs. April 6, 1990; People vs. Bermas, G.R. Nos. 76416 and 94312 July 5,
Quemeggen, G.R. No. 178205, July 27, 2009). 1999).

f. Occupation of real property - In simple robbery under b. Variance rule - The body of the information charged the
Article 294 of RPC, violence and intimidation is employed to take property. accused of compound crime with murder and attempted murder since two
In occupation of real property under Article 312, violence or intimidation is victims were hit by a single shot. The evidence shows that murder and
employed to occupy the real property. If the accused has already attempted murder are separate crimes since the two victims were hit by
occupied the house of the complainant, and he used violence or several shot. Under the variance rule, if the crime alleged in the
intimidation to prevent the said owner from reoccupying the property, the information varies with the crime proven with evidence, the accused shall
crime committed is not occupation of real property. The accused may be be convicted of the crime alleged or proven whichever the lesser. Thus,
held liable of grave threat, grave coercion or discharge of firearm accused shall be convicted of complex crime, which is lesser compared to
depending upon the circumstance of the case. two crimes (People vs. Bernardo, GR No. 198789, June 03, 2013).

g. Robbery by using force upon thing - Breaking the window c. Several acts - Several acts in killing several victims do not
of a house and taking property inside without entering constitutes theft. constitute a compound crime. Article 48 requires a single act constituting
Breaking the window is not a circumstance that will qualify the taking into two or more crimes (People vs. Toling, G.R. No. L-27097, January 17,
robbery by using force upon thins since this crime requires that the 1975). Exceptions: Several acts in killing several victims under a single
breaking of window is a means to enter the building (People vs. Adorno, criminal impulse (People vs. Lawas, L-7618-20, June 30, 1955) or under
CA 40 O.G. 567; People vs. Jaranilla. G.R. No. L-28547, February 22, single criminal purpose (People vs. Abella, G.R. No. L-32205 August 31,
1974). Breaking the window to commit theft is an ordinary aggravating 1979) shall be considered as a single act. Hence, it is a compound crime.
circumstance.

Using picklock to open a locked cabinet and taking property The single criminal impulse rule under the Lawas doctrine is
therein is not robbery by using force upon thing. To constitute robbery by more of an exception than the general rule (People vs. Remollino, G.R.
using force upon thing, the picklock must be used to open the building and No. L-14008, September 30, 1960). Article 48 on compound crime speaks
not merely a lockedfurniture (US vs. Macamay, G.R. No. 11952, of single act, but not single criminal impulse (People vs. Pineda, G.R. No.
September 25, 1917). Entrusted key is not a false key in robbery by using L-26222, July 21, 1967). In Lawas case, the SC was merely forced to
force upon thing. apply Article 48 because of the impossibility of ascertaining the number of
persons killed by each accused (People vs. Nelmida, G.R. No.
h. Complex crime of two robberies - In Sebastian case, 184500. September 11, 2012). Thus, the Lawas doctrine should not be
when the elements of both robbery by means of violence and intimidation applied if there is conspiracy since the number of victims actually killed by
and robbery by using force upon thing are present, the accused shall be each conspirator is not anymore material if there is conspiracy (People vs.
held liable of the former since the controlling qualification is the violence Elarcosa, G.R. No. 186539, June 29, 2010).
and intimidation. However, the penalty for robbery in inhabited house if the
robber is armed is graver than simple robbery. Hence, by hurting the The single criminal purpose rule under the Abella case was
victim, the offender shall be penalized with a lighter penalty. Since adopted in consideration of the plight of the prisoners; hence, it is only
Sebastian principle defies logic and reason, People vs. Napolis, G.R. No. applicable if killings were commit by prisoners against their fellow
L-28865, February 28, 1972 abandoned it. Under the present rule, when prisoners (People vs. Pincalin, G.R. No. L-38755, January 22, 1981;
the elements of both robbery by means of violence and intimidation and People vs. Nelmida, G.R. No. 184500, September 11, 2012
robbery by using force upon thing are present, the crime is a complex one
under Article 48 of said Code. Hence, the penalty for robbery in inhabited 32. Complex crime proper - Stabbing after the rape is a
house shall be imposed in its maximum period (People vs. Disney, G.R. separate crime of frustrated homicide. This is not a complex crime proper
No. L-41336, February 18, 1983; Fransdilla vs. People, GR No. 197562, since the latter is not necessary to commit the former (People vs. Isla,
April 20, 2015, Bersamin). If the entry into the dwelling is without force G.R. No. 199875, November 21, 2012).
upon thing, and the property was taken by means of violence or
intimidation, the crime committed is robbery by means of violence or

Page 7 of 25
a. Abduction and rape - If the main objective of the accused G.R. No. L-8936, October 23, 1956; People vs. Hernandez, G.R. Nos. L-
is to rape the victim, the crime committed is rape. Forcible abduction 6025-26, July 18, 1956; Enrile vs. Salazar, G.R. No. 92163 June 5, 1990).
(People vs. Mejoraday, G.R. No. 102705, July 30, 1993; People vs. Doctrine of absorption is applicable to coup detat for being a political
Almanzor, G.R. No. 124916, July 11, 2002) or illegal detention (People vs. crime because the purpose of coup plotter is to seize or diminish state
Nuguid, G.R. No. 148991, January 21, 2004), which is incidental to the power (Gonzales vs. Abaya, G.R. No. 164007, August 8, 2006, concurring
commission of rape, is absorbed. The doctrine of absorption rather than opinion by Justice Callejo).
Article 48 of RPC is applicable since forcible abduction or illegal detention
is an indispensable means to commit rape. Membership in CPP-NPA alone will not establish political
motivation behind the killing for purpose of convicting the killers for
If forcible abduction is a necessary means to commit rape, this rebellion (People vs. Lovedioro, G.R. No. 112235, November 29, 1995;
is a complex crime proper under Article 48 of RPC. However, if multiple People vs. Solongan, G.R. No. 137182, April 24, 2003). But membership
rapes were committed, forcible abduction will be considered as a in a liquidation squad and killing a government officer is sufficient to
necessary means to commit the first rape but not the subsequent rape. establish political motivation (People v. Dasig,G.R. No. 100231. April 28,
Hence, with respect to the first rape, the crime committed is complex 1993).
crime of rape though forcible abduction while the subsequent rapes will be
treated as separate crimes (People vs. Jose, G.R. No. L-28232, February RA No. 6968 eliminated the phrases "engaging in war against
6, 1971; People vs. Buhos, G.R. No. L-40995, June 25, 1980; People vs. the forces of the government", "committing serious violence" and
Tami, G.R. Nos. 101801-03, May 02, 1995; People vs. Garcia, G.R. No. destroying property in Article 135 of RPC. These modes of committing
141125, February 28, 2002, En Banc; People vs. Amaro, G.R. No. rebellion deleted by RA No. 6968 were used by the SC in justifying the
199100, July 18, 2014). doctrine of absorption. The amendment of Article 135 does not affect the
accepted concept of rebellion and these overt acts of violence are
As a rule, forcible abduction is an indispensable means to deemed subsumed in the provision on public and armed uprising, which
commit rape; hence, the latter absorbs the former. However, if the victim is an element of rebellion in Article 134 (Regalado). Hence, the doctrine of
was brought in a house or motel or in a place with considerable distance absorption is still good. The incidents in Lovedioro case, and Solongan
from the place where she was abducted, forcible abduction will be case happened after RA No. 6968, and yet, the SC is still applying the
considered as a necessary means to commit rape; hence, the crime doctrine of absorption.
committed is complex crime proper.
a. Sedition - Doctrine of absorption is not applicable to
If the accused abducted the victim without clear showing of sedition. There is neither law nor jurisprudence which can allow the
lewd design, the crime committed is kidnapping since it will appear that absorption of murder and kidnapping by sedition. The absorption principle
the intention of the accused is to deprive victim of his liberty. If as a in the cases of Hernandez and Geronimo cannot properly be invoked as
consequence of illegal detention, the victim was rape, the crime authority since those two cases involved rebellion and not sedition
committed is a special complex crime of kidnapping with rape. This is the (People vs. Hadji, G.R. No. L-12686, October 24, 1963). Moreover, public
crime committed regardless of the number of rapes. Multiple rapes will be and tumultuous uprising for political or social purpose, which is the
considered as a component of this special complex crime (People vs. essence of sedition, does not require killings, burning of properties and
Mirandilla, Jr., G.R. No. 186417, July 27, 2011; People vs. Anticamaray, extortions.
G.R. No. 178771, June 8, 2011). If as a consequence of illegal detention,
the victim was rape and then killed, the crime committed is a special b. Incidental deprivation of liberty - If the principal intention
complex crime of kidnapping with homicide. Rape will be considered as a of the offenders is to rob the victims, and the deprivation of their liberty is
component of this special complex crime (People vs. Larranaga, 138874- just incidental to the prevention of the responding police officers from
75, February 3, 2004, En Banc). arresting them, the crime committed is robbery, which absorbed
kidnapping and serious illegal detention (People vs. Astor, G.R. Nos. L-
The difference between rape through forcible abduction and 71765-66, 29 April 1987). If the accused committed robbery, but
kidnapping with rape lies on the criminal intention of the accused at the thereafter, they detained the victims to demand additional money, and
precise moment of abduction. If the abduction is committed with lewd later forestall their capture by the police, the crime committed is complex
design, the crime committed is rape through forcible abduction. On the crime of robbery through kidnapping and serious illegal detention. The
other hand, if the abduction is committed without lewd design, the crime detention was availed of as a means of insuring the consummation of the
committed is kidnapping with rape (People vs. Mirandilla, Jr., G.R. No. robbery. The detention was not merely a matter of restraint to enable the
186417, July 27, 2011). Even if the victim was detained for one week and malefactors to escape, but deliberate as a means of extortion for an
in the course thereof, she was rape, the crime committed is rape through additional amount. Hence, the Astor principle is not applicable (People vs.
forcible abduction if the abduction is committed with lewd design (People Salvilla, G.R. No. 86163 April 26, 1990). If the accused committed robbery
vs. Amaro, G.R. No. 199100, July 18, 2014). by band, but thereafter, they took one of the victims and detained him for
seven days in another place for purpose of demanding ransom, they are
If the accused was molesting the victim immediately upon liable of separate crimes of robbery by band and kidnapping for ransom
abduction, that is proof that abduction is committed with lewd design (People vs. Basao, G.R. No. 189820, October 10, 2012).
(People vs. Jose, supra). After eating the food given by accused, the
victim became dizzy and thereafter, she passed out. When she regained 34. Delito continuado - In order that continuous crime may
consciousness, she notices that she and accused are naked inside a exist, there should be: (1) plurality of acts performed separately during a
room. She was raped and detained for 6 days. The crime committed is period of time; (2) unity of criminal intent and purpose and (3) unity of
rape through forcible abduction (People vs. Amaro, G.R. No. 199100, July penal provision infringed upon or violated (Santiago vs. Garchitorena , GR
18, 2014). NO. 109266, December 2, 1993). The following are delito continuado: (1)
several acts of taking roasters owned by different owner under a single
b. Complex crime and special complex crime - In a criminal impulse to take them all in violation of a single penal provision,
composite crime, the composition of the offenses is fixed by law, but in a and that is Article 308 of RPC (Note: This is also called single larceny rule;
complex or compound crime, the combination of the offenses is not People vs. Jaranilla, G.R. No. L-28547, February 22, 1974); and
specified but generalized, that is, grave and/or less grave, or one offense (2)several acts of taking away by force the valuables of the employees
being the necessary means to commit the other. In a composite crime, the working in Energex gasoline station committed under a single criminal
penalty for the specified combination of crimes is specific, but in a intent to commit robbery in that place in violation of a single penal
complex or compound crime the penalty is that corresponding to the most provision, and that is Article 294 of RPC (People vs. De Leon, GR No.
serious offense, to be imposed in the maximum period. A light felony that 179943, June 26, 2009).
accompanies the commission of a complex or compound crime may be
made the subject of a separate information, but a light felony that Accused inserted his penis thrice into the private part of victim
accompanies a composite crime is absorbed (People vs. Esugon, G.R. for purpose of changing position. The three penetrations motivated by a
No. 195244, June 22, 2015, Bersamin). single criminal intent to satisfy his lust in violation of single penal provision
(Article 266-A of RPC) constitute a continued crime of rape (People vs.
33. Doctrine of absorption - If murder, kidnapping or arson Aaron, G.R. Nos. 136300-02, September 24, 2002). Accused inserted his
committed in furtherance of rebellion, they will be divested of their penis thrice into the private part of victim for purpose of resting for five
character as common crimes and will assume the political complexion of minutes. He satisfied his lust every time he would withdraw his penis to
rebellion. Hence, rebellion absorbs these crimes (People vs. Geronimo, rest. Since the three penetrations were motivated by separate three

Page 8 of 25
criminal impulse to satisfy his lust, three separate crimes of rape are the accused is sentenced to suffer 10 years of prision mayor as
committed (People vs. Lucena, GR No. 190632, February 26, 2014). minimum indeterminate penalty to 14 years, 8 months of reclusion
temporal as maximum penalty (Ladines vs. People, G.R. No. 167333,
Foreknowledge doctrine - There is no delito continuado January 11, 2016, Bersamin).
where the accused when he committed the first threat against the victim
has no foreknowledge that he will chance upon the second and third 36. Four indivisible penalty - There are four kinds of divisible
victims to commit the second and third threat. Without such penalty, which are governed by Article 64, to wit: (1) penalty composed of
foreknowledge, three threats could not be said to have been committed three periods fixed in accordance with Article 76; (2) penalty not
under a single criminal impulse, which is the basis of applying delito composed of three periods computed in accordance with Article 65; (3)
continuado principle. Several threats can only be considered as continued complex penalty under Article 77, par. 1; and (4) penalty without specific
crime if the offender threatened three individuals at the same place and at legal form under Article 77, par. 2.
the same time (Paera vs. People, G.R. No. 181626, May 30, 2011).
a. Penalty containing three periods Article 76 of RPC
35. Incorrect penalty The court should prescribe the correct expressly fixed the range of the period for reclusion temporal, prision
penalties in complex crimes in strict observance of Article 48 of mayor, temporary disqualification, prision correccional, destierro,
the Revised Penal Code. In estafa through falsification of commercial suspension, arresto mayor, and arresto menor. To find the range of the
documents, the court should impose the penalty for the graver offense in periods of any of the afore-said penalties, one will simply read Article 76. If
the maximum period. Otherwise, the penalty prescribed is invalid, and will the crime committed is homicide and there is one mitigating circumstance
not attain finality (De Castro vs. People, G.R. No. 171672, February 02, of confession, the prescribed penalty of reclusion temporal shall be
2015, Bersamin). applied in its minimum period because of Article 64. Article 76 expressly
states that the range of the minimum period of reclusion temporal is from
In Fransdilla vs. People, GR No. 197562, April 20, 2015, 12 years and 1 day to 14 years and 8 months. Within the range of this
Bersamin, the trial judge fixed the indeterminate sentence at period, the maximum indeterminate penalty shall be fixed.
"imprisonment of 12 years and 1 day to 14 years and 8 months
of reclusion temporal as minimum to 17 years, 4 months and 1 day to 20 The range of the minimum, medium and maximum periods
years of reclusion temporal as maximum". This is a patent elementary fixed in accordance with Article 76 is one-third equal portion of the
error. Considering that the clear objective of the ISLAW is to have the respective penalties except arresto mayor. Under Article 76, the minimum
convict serve the minimum penalty before becoming eligible for release on period of arresto mayor ranges from 1 month and 1 day to 2 months;
parole, both the minimum and the maximum penalties must medium period ranges from 2 month and 1 day to 4 months; and
be definite, not ranging. This objective cannot be achieved otherwise, for maximum period ranges from 4 months and 1 day to 6 months. Hence,
determining when the convict would be eligible for release on parole the time included in the duration of the minimum period of arresto mayor is
would be nearly impossible if the minimum and the maximum were only one month while that of the medium and maximum is two months.
as indefinite as the RTC fixed the indeterminate sentence. Indeed, that the
sentence is an indeterminate one relates only to the fact that such b. Penalty not composed of three periods - Penalties with
imposition would leave the period between the minimum and the divisible duration, the periods of which are not expressly mentioned in
maximum penalties indeterminate "in the sense that he may, under the Article 76 are called penalties not composed of three periods; since
conditions set out in said Act, be released from serving said period in Article 76 has not fixed the duration of their periods, they must be
whole or in part." computed in accordance with Article 65. Under this provision, the time
included in the duration of penalty shall be divided into three equal
In People vs. Fontanilla, G.R. No. 177743, January 25, 2012, portions and periods shall be formed from each portion.
Bersamin - The trial court sentenced the accused to suffer reclusion
perpetua to death for murder. This is erroneous. Reclusion perpetua and The penalty for malversation under paragraph 2 of Article 217
death should not be imposed as a compound, alternative or successive of RPC is prision mayor in its minimum and medium period. The range of
penalty for a single felony. In short, the imposition of one precluded the this penalty is not found in Article 76. Considering that this penalty is not
imposition of the other. composed of three periods, the time included in the penalty prescribed
should be divided into three equal portions, which each portion forming
Article 64 of RPC provides the rules on application of divisible one period, pursuant to Article 65 (Zafra vs. People, G.R. No. 176317,
penalty. Under this provision, the penalty prescribed for a felony shall be July 23, 2014, Bersamin).
applied in its proper imposable period based on the presence of modifying
circumstances. The duration of prision mayor in its minimum and medium
period is 6 years and 1 day to 10 years. To determine the time included
Under Article 349 of RPC, the penalty for bigamy is prision in the duration, deduct one day and the lower limit of the prescribed
mayor. In the absence of modifying circumstances, prision mayor penalty from its upper limit.
pursuant to Article 64 shall be applied in its medium period, which ranges
from 8 years and 1 day to 10 years. Applying the Islaw, the minimum of 10 years -------------------upper limit
the indeterminate sentence should be within the range of prision - 6 years and 1 day ------- lower limit
correccional, the penalty next lower than that prescribed for the offense, - 1 day
which is from 6 months and 1 day to 6 years. Accordingly, the --------------------------
indeterminate sentence of 2 years and 4 months of prision 4 years ------- time included in the duration of penalty
correccional, as minimum, to 8 years and 1 day of prision mayor as
maximum is proper (Lasanas vs. People, G.R. No. 159031, June 23, Four years, which is the time included in the duration, shall be divided
2014, Bersamin). into three equal portions.

Under Article 249 of RPC, the penalty for homicide is 4 years


reclusion temporal. In the absence of any modifying circumstances, 3
reclusion temporal shall be applied in its medium period, which ranges -------------------------
from 14 years, 8 months and 1 day to 17 years and 4 months. Applying 1 year and 4 months --------- one third portion of the penalty
Article 64, within the limits of the medium period of reclusion temporal,
the courts shall determine the extent of the penalty according to the The minimum, medium and maximum periods shall be formed
number and nature of the aggravating and mitigating circumstances and out the 3 equal portions of the penalty. The time included in the duration of
the greater or lesser extent of the evil produced by the crime. Thus, the
each period is 1 year and 4 months.
court could not impose the highest penalty of the medium period
of reclusion temporal, and that, is 17 years and 4 months without
specifying the justification for so imposing. Without proper justification, 6 years
the court should impose the lowest penalty of the medium period of +1 year and 4 months
reclusion temporal, and that is, 14 years, 8 months. Since ISLAW is ----------------------------
applicable, 14 years, 8 months shall be considered as the maximum 7 years and 4 months
penalty while the minimum penalty shall be fixed within the limits of + 1 year and 4 months
prision mayor, which ranges from 6 years and 1 day to 12 years. Hence, ----------------------------
8 years and 8 months
Page 9 of 25
+1 year and 4 months d. Penalty without specific legal form Reclusion
----------------------------- temporal to reclusion perpetua prescribed for mutilation under Article 262
10 years is a penalty without a specific form (People vs. Romero, G. R. No.
112985, April 21, 1999). The duration of its periods is not fixed by Article
Thus, the minimum period of the prescribed penalty of prision
mayor in its minimum and medium periods ranges from 6 years and 1 76. This penalty cannot be divided into three equal portions in accordance
day to 7 years and 4 months; its medium period ranges from 7 years, 4 with Article 65 since it has an indivisible component, and that, is reclusion
months and 1 day to 8 years and 8 months; its maximum period rages perpetua. It is not a complex penalty under Article 77, par. 1 since it
from 8 years, 8 months and 1 day to 10 years (Zafra vs. People, G.R. No. merely composed of two distinct penalties. Thus, its periods shall be
176317, July 23, 2014, Bersamin). determined in accordance with Article 77, par. 2, which provides that the
periods shall be distributed, applying for analogy the prescribed rules.
c. Complex penalty Complex penalty is composed of three
Applying Article 77, par. 1 by analogy, the maximum period shall be
distinct penalties. The periods of complex penalty is formed in accordance
with Article 77, par. 1. Applying this provision, each of the components of formed out of the most severe penalty, and that is, reclusion perpetua.
the complex penalty shall form a period; the lightest of them shall be the Applying Article 65 by analogy, the duration of reclusion temporal shall be
minimum, the next the medium, and the most severe the maximum period. divided into two equal portions and minimum and medium periods shall be
formed from each portion. Applying Article 77, par. 2, reclusion temporal
Reclusion temporal to death prescribed for treason committed to reclusion perpetua is broken down as follows:
by resident alien under Article 114 of RPC is a complex penalty. This
penalty is composed to three distinct penalties, namely: reclusion
temporal, reclusion perpetua and death penalty. Out of these three Minimum: Lower half of reclusion temporal
components, periods shall be formed in accordance with Article 77, par. 1. 12 years and 1 day to 16 years
Thus, reclusion temporal, which is the lightest of the three, shall be Medium: Higher half of reclusion temporal
minimum period of penalty of reclusion temporal to death; reclusion 16 years and 1 day to 20 years
perpetua, which is the next penalty, shall be the medium period; death Maximum: Reclusion perpetua
penalty, which is the most severe, shall be the maximum period. Thus, in
the absence of modifying circumstances, reclusion temporal to death See: People vs. Macabando, G.R. No. 188708, July 31, 2013; People vs.
prescribed for treason shall be applied in its medium period, and that is, Romero, G. R. No. 112985, April 21, 1999; Gonzales vs. People, G.R. No.
reclusion perpetua. 159950, February 12, 2007; and People vs. Oliva, G.R. No. 122110,
September 26, 2000
Prision correccional in its maximum period to prision mayor in
its medium period prescribed for simple robbery under Article 294 of RPC Reclusion temporal in its maximum period to reclusion
is a complex penalty under since it composed of three distinct penalties. perpetua prescribed for malversation under Article 217 is a penalty without
Thus, prision correccional in its maximum period, which is the lightest of specific form. The duration of its periods is not fixed by Article 76. This
the three, shall be minimum period of this prescribed penalty. Prision penalty cannot be divided into three equal portions in accordance with
mayor in its minimum period, which is the next penalty, shall be the Article 65 since reclusion perpetua component is not divisible. It is not a
medium period. Prision mayor in its medium period, which is the most complex penalty under Article 77, par. 1 since it merely composed of two
severe, shall be the maximum period. In sum, prision correccional in its distinct penalties. Thus, its periods shall be determined in accordance with
maximum period to prision mayor in its medium period prescribed for Article 77, par. 2. Applying this provision, the maximum period shall be
robbery shall be broken down as follows: formed out of the most severe penalty, and that is, reclusion perpetua.
The duration of reclusion temporal in its maximum period shall be divided
into two equal portions, and minimum and medium periods shall be
Minimum: Prision correccional in its maximum period formed from each portion. In sum, reclusion temporal in its maximum
(4 years, 2 months and 1 day to 6 years) period to reclusion perpetua is broken down as follows:
Medium: Prision mayor in its minimum period
(6 years and 1 day to 8 years) Minimum: Lower half of reclusion temporal in its maximum
Maximum: Prision mayor in its medium period period
17 years, 4 months and 1 day to 18 years and 8
(8 years and 1 day to 10 years) months
Medium: higher half of reclusion temporal in its maximum
See: People vs. Dela Cruz, G.R. No. 168173, December 24, 2008, En period
Banc, People vs. Barrientos, G.R. No. 119835, January 28, 1998, En 18 years, 8 months and 1 day to 20 years
Banc, People vs. Castillo, G.R. No. L-11793, May 19, 1961, En Banc, Maximum: Reclusion perpetua
People vs. Diamante, G.R. No. 180992, September 04, 2009, and People
vs. Lumiwan, G.R. Nos. 122753-56, September 07, 1998. See: Estepa vs. Sandiganbayan, G.R. No. 59670, February 15, 1990,
Torres vs. People, GR No. 175074, August 31, 2011, Cabarlo vs. People,
G.R. NO. 172274, November 16, 2006; Mesina vs. People, G.R. No.
Reclusion temporal in its medium period to reclusion perpetua 162489, June 17, 2015, Bersamin.
prescribed for sexual abuse under Section 5 (b) of RA No. 7610 is a
complex penalty since it composed of three distinct penalties. Applying 37. Special mitigating circumstance - Accused was found
Article 77, par. 1, this complex penalty can be broken down as follows: guilty of parricide punishable by the penalty of reclusion perpetua to
death. Applying rules for application of indivisible penalties (Article 63), the
Minimum: Reclusion temporal in its medium period lesser penalty of reclusion perpetua shall be applied if there are two
(14 years, 8 months and 1 day to 17 years and 4 mitigating circumstance. The penalty cannot be lowered to reclusion
months) temporal, no matter how many mitigating circumstances are present. The
Medium: Reclusion temporal in its maximum period special mitigating circumstance is found in rules for application of divisible
(17 years, 4 months and 1 day to 20 years) penalties (Article 64), which is not applicable because the penalty is not
Maximum: Reclusion perpetua divisible (People vs. Takbobo, G.R. No. No. 102984, June 30, 1993). The
Takbobo principle is also applicable if the penalty prescribed by law for the
See: People vs. Morante, G.R. No. 187732, November 28, 2012 crime committed is a single indivisible penalty such as reclusion perpetua.

If there are three mitigating circumstance and one aggravating


circumstance, special mitigating circumstance for purpose of graduating
the penalty shall not be appreciated. Although there are two remaining
mitigating circumstances after applying the off-set rule, the penalty shall
not be lowered by one degree because the appreciation of special
mitigating circumstance requires that there is no aggravating
circumstance.

Page 10 of 25
38. Off set rule - Only ordinary aggravating and mitigating September 21, 2007) or quasi-recidivisim shall be considered in plunder
circumstances are subject to the offset rule. Privileged mitigating and illegal possession of loose firearm.
circumstance of minority cannot be offset by ordinary aggravating
circumstance (Aballe vs. People, G.R. No. L-64086, March 15, 1990). If Under Section 98 of RA No. 9165, the provisions of RPC shall
privileged mitigating circumstance and ordinary aggravating circumstance not apply except in the case of minor offenders. Hence, if the accused is a
attended the commission of felony, the former shall be taken into account minor, privilege mitigating circumstance of minority (People vs. Montalaba,
in graduating penalty; the latter in applying the graduated penalty in its G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735,
maximum period (People vs. Lumandong, GR NO. 132745, March 9, October 24, 2012Asiatico vs. People, G.R. No. 195005, September 12,
2000, En Banc). Quasi-recidivism is a special aggravating circumstance 2011), confession or quasi-recidivisim (People vs. Salazar, G.R. No.
and cannot be offset by a generic mitigating circumstance (People vs. 98060, January 27, 1997) shall be considered in crime involving
Macariola, G.R. No. L-40757 January 24, 1983). The circumstance of dangerous drugs. In this case, life imprisonment shall be considered as
treachery, which qualifies the killing into murder, cannot be offset by a reclusion perpetua. If the accused is an adult, these circumstances shall
generic mitigating circumstance voluntary surrender (People vs. Abletes not be appreciated.
and Pamero, GR NO. L-33304, July 31, 1974).
If the special law (such as RA No. 6235 on hijacking and RA
39. Penalty of offense under special law - The penalty for No. 3019 on corruption) did not adopt the technical nomenclature of
possession of dangerous drugs is 12 years and 1 day to 20 years of penalties in RPC, the latter shall not apply. Mitigating circumstance of
imprisonment. The court cannot impose a straight penalty of 12 years and confession shall not be appreciated since the penalty not borrowed from
1 day since the application of indeterminate sentence law is mandatory RPC cannot be applied in its minimum period. The crime has not
(unless the accused deserves a lenient penalty by confessing pursuant to attempted or frustrated stage since penalty not borrowed from RPC
the Nang Kay principle). Applying the Islaw, the minimum indeterminate cannot be graduated one or two degrees lower.
penalty shall not be less than 12 years and 1 day while the maximum shall
not exceed 20 years. Thus, the court can sentence the accused to suffer Mitigating circumstance of old age can only be appreciated if
15 years of imprisonment as minimum to 18 years as maximum (Asiatico the accused is over 70 years old at the time of the commission of the
vs. People, G.R. No. 195005, September 12, 2011; Escalante vs. People, crime under RA No. 3019 and not at the time of promulgation of
G.R. No. 192727, January 9, 2013). judgement (People vs. Reyes, G.R. No. 177105-06, August 12, 2010,
Bersamin). Moreover, this the mitigating circumstance of old age cannot
Under Section 9 of RA 3019, the penalty for violation of Section be appreciated in crime punishable by RA No. 3019 since this law did not
3 (e) of RA 3019 is imprisonment for not less than 6 years and 1 month adopt the technical nomenclature of the penalties of the Revised Penal
and not more than 15 years. Applying the Islaw, the minimum Code.
indeterminate penalty shall not be less than 6 years and 1 month while the
maximum shall not exceed 15 years. Thus, the court can sentence the 42. Subsidiary penalty - If the convict has no property with
accused to suffer 6 years and 1 month of imprisonment as minimum to 10 which to meet the fine, he shall be subject to a subsidiary personal liability
years as maximum (People vs. Reyes, G.R. No. 177105-06, August 12, at the rate of one day for each amount equivalent to the highest minimum
2010, Bersamin). wage rate prevailing in the Philippines at the time of the rendition of
judgment of conviction by the trial court (Article 39 of RPC as amended by
40. Mandatory application of the Islaw - The application of RA No. 10159).
the Indeterminate Sentence Law is mandatory to both the Revised Penal
Code and the special laws (Romero vs. People, G.R. No. 171644, 43. Multiple sentences - When the culprit has to serve two or
November 23, 2011). However, the Supreme Court, in People vs. Nang more penalties, he shall serve them simultaneously if the nature of the
Kay, G. R. No. L-3565, April 20, 1951, has provided an exception. In this penalties will so permit. Thus, convict could serve simultaneously arresto
case, the accused pleaded guilty to offense where the law prescribed a mayor and fine, prision correccional and perpetual absolute
penalty of 5 to 10 years imprisonment. The court sentenced the accused disqualification, or reclusion perpetua and civil interdiction. In sum, while
to suffer 5 years of imprisonment. The Supreme Court sustained the lingering in prison, convict could pay fine, return the property confiscated,
penalty. Fixing the penalty at the minimum limit without applying Act No. be disallowed to cast his vote or to act function as a public officer.
4103 is favorable to the accused since the accused shall be automatically
released upon serving 5 years of imprisonment. Applying Act No. 4103 When the culprit has to serve two or more penalties, he shall
would lengthen the penalty because the indeterminate maximum penalty serve them successively if the nature of the penalties will not permit
must be necessarily more than 5 years (People vs. Arroyo, G.R. No. L- simultaneous service. Convict must serve multiple penalties successively:
35584-85, February 13, 1982). However, the Nang Kay principle is not (1) where the penalties to be served are destierro and imprisonment; and
applicable where the crime is punishable under the Revised Penal Code. (2) where the penalties to be served are imprisonment. However, the
The application of ISLAW is always mandatory if the penalty is prescribed successive service of sentences is subject to the three-fold rule and 40-
by RPC since it is favorable to the accused. It is favorable to the accused year limitation rule.
since in fixing the minimum penalty, the prescribed penalty under the
Code shall be lowered by one degree. On the other hand, in fixing the 44. Three-fold rule - The three fold rule is to be taken into
minimum penalty for offense under special law involved in the Nang Kay account not in the imposition of the penalty but in connection with the
case, the prescribed penalty shall not be lowered (People vs. Judge Lee, service of the sentence imposed (People vs. Escares, G.R. No. L-11128-
Jr, G.R. No. 66859, September 12, 1984). The Nang Kay principle is not 33, December 23, 1957; Mejorada vs. Sandiganbayan, G.R. No. L-51065-
also applicable where the accused does not deserve a lenient penalty. In 72, June 30, 1987). Thus, the court cannot dismiss criminal cases in
Batistis vs. People, G.R. No. 181571, December 16, 2009, the SC through excess of three on the basis of three-fold rule.
Justice Bersamin said the Nang Kay exception is not applicable where
there is no justification for lenity towards the accused since he did not 45. Modes of criminal extinction The modes of
voluntarily plead guilty, and the crime committed is a grave economic extinguishing criminal liability are: death of the offender; service of the
offense because of the large number of fake Fundador confiscated. sentence; amnesty or absolute pardon; prescription of crime, or penalty;
marriage between the offender and the offended in crimes against chastity
41. Adoption of the technical nomenclature of the Spanish (Article 89 of RPC) or in rape; or forgiveness in marital rape (Article 266-
penalty - RPC is not generally applicable to malum prohibitum. However, C); and probation (PD No. 968 as amended by RA No. 10707.
when a special law, which punishes malum prohibitum, adopts the
technical nomenclature of the penalties in RPC, the provisions under this a. Reelection - Reelection to public office is not provided for in
Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994) such Article 89 of RPC as a mode of extinguishing criminal liability incurred by a
as: (1) Article 68 on the privilege mitigating circumstance of minority; (2) public officer prior to his reelection (Oliveros vs. Villalulz, G.R. No. L-
Article 64 on application of penalty in its minimum period if there is a 34636, May 30, 1974). But a re-elected public official could not be
confession; and (3) Article 160 on special aggravating circumstance of removed for administrative offense committed during a prior term, since
quasi-recidivism. his re-election to office operates as a condonation of his misconduct to the
extent of cutting off the right to remove him therefor (Aguinaldo vs.
RA No. 7080 and RA No. 10591 adopt the nomenclature of the Santos, G.R. No. 94115 August 21, 1992). However, the doctrine of
penalties in RPC. Hence, minority, confession (Jacaban vs. People, GR condonation of administrative offense by reason of reelection has been
No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733, abandoned for being inconsistent to Section 1, Article X1 of the 1987

Page 11 of 25
Constitution on public office is a public trust and public accountability e. Constructive notice rule - The 10-year prescriptive period
(Morales vs. CA and Binay, GR No. 217126-27, November 10, 2015). for falsification of document shall commence to run on the date of
recording of the falsified deed of sale in the Registry of Deeds because of
b. Novation - Novation is not a mode of extinguishing criminal the constructive notice rule under the Torren system (People vs. Reyes,
liability but it can extinguish the old contract, which may be the basis of G.R. No. 74226, July 27, 1989). The 15-year prescriptive period for
criminal liability. In estafa through misappropriation, receiving the bigamy shall commence to run on the date of actual discovery of the
property in trust is an element thereof. In sum, contract is an ingredient of bigamous marriage and not from the registration of bigamous marriage in
this crime. Novation may convert the contract of trust into creditor-debtor the Office of the Civil Registrar. The law on Civil Registry and the Family
situation, or put doubt on the true nature of the original transaction Code, which governed registration of marriage, do not provide a rule on
(People vs. Nery, G.R. No. L-19567, February 5, 1964). In these constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454,
situations, the accused will be acquitted for failure to prove the element of June 14, 1994).
receipt of property in trust. Thus, novation is a defense in estafa through
misappropriation where the contract of agency is converted into sale f. Non-actionable crime - As a rule, period of prescription
(Degaos vs. People, GR No. 162826, October 14, 2013, Bersamin). commence to run from the date of discovery of its commission. However,
However, partial payment and promise to pay the balance of obligation if the crime is not yet actionable at the time of its commission, period of
under contract of agency will not convert it into sale. There is no novation prescription will commence to run from the time it becomes actionable. In
since the obligation of the accused in making a partial payment is not false testimony, the period of prescription commences to run from the date
incompatible to the obligation to give the proceeds of sale of the property of the finality of judgment of a case in which the offender testified falsely.
under the contract of agency (Degaos vs. People, supra). 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
Novation cannot be used as a defense in case where the crime is consummated upon the dishonor of the check by the drawee
existence of contract is not an element. In theft case, there was no bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001).
contractual relationship or bilateral agreement which can be modified or However, in violation of BP 22, the four-year period of prescription for
altered by the parties (People vs. Tanjutco, G.R. No. L-23924, April 29, such crime commences to run from the date of the expiration of the five-
1968, En Banc).In estafa through falsification of public documents, the day period from receipt of notice of dishonor by the drawer. Prior to that
liability of the offender cannot be extinguished by mere novation (Milla vs. date, the crime is not yet actionable (People vs. Pangilinan, G.R. No.
People, G.R. No. 188726, January 25, 2012). 152662, June 13, 2012). It would be absurd to consider the prescriptive
period for false testimony or violation of BP Blg. 22 as already running
c. Death - Death of an accused pending appeal shall before it becomes actionable, and yet, the complainant could not cause its
extinguish his criminal liability and civil liability arising from crime (Article interruption because he is not yet allowed to file a complaint.
89 of RPC); but not his civil liability arising from a source other than crime
(e.g. quasi-delict, contract, quasi-contract or law). Civil liability arising from h. Filing of complaint for preliminary investigation - If the
a source other than crime is not deemed included in the institution of crime is punishable by the Revised Penal Code or a special law, the
criminal action. Hence, the private complainant must file a separate civil institution of judicial proceeding(e.g. filing of complaint or information in
action against either the executor or administrator, or the estate of the court) or executive proceeding (e.g. filing of complaint for preliminary
accused. During the pendency of the criminal case, the statute of investigation) interrupts the running of prescription such as the filing of
limitations on this surviving civil liability is deemed interrupted (People vs. complaint: (1) for violation of BP Blg. 22 in the prosecutors office - People
Bayotas, G.R. No. 102007, September 2, 1994). However, in violation of vs. Pangilinan, G.R. No. 152662, June 13, 2012;Panaguiton vs.
BP Blg. 22, civil liability arising from a source other than crimeis Department of Justice, G.R. No. 167571, November 25, 2008; (2) for
mandatorily included in the institution of criminal action. Hence, the court, violation of Revised Securities Act in Securities and Exchange
despite the death of the accused pending appeal, must determine his civil Commission - SEC vs. Interport Resources Corporation, G.R. No. 135808,
liability arising from contract (Bernardo vs. People, G.R. No. 182210, October 6, 2008; or (3) violation of RA No. 3019 in the Ombudsman -
October 05, 2015). In sum, the private complainant is not required to file a Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
separate civil action based on contract involving a dishonored check. September 11, 2013.

d. Pardon - Person, who was pardoned for the crime The PCGG has no power to investigate cronies of Marcos for
punishable by reclusion perpetua, cannot run in the Senatorial race if the violation of RA No. 3019 not involving ill-gotten wealth. Such investigation
terms of the pardon has not expressly restored his right to hold public for being voidab initiowould not interrupt the running of prescription
office (Article 36 of RPC) or expressly remitted the accessory penalty of (People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29,
perpetual absolute disqualification (Article 41). GMA pardoned President 2009).
Estrada with express restoration of his civil and political rights. Hence, he
is eligible to run as Mayor (Risos-vidal vs. Lim, G.R. No. 206666, January Ifthe crime is punishable by an ordinance, only the institution of
21, 2015). judicial proceeding shall interrupt itstwo-month prescriptive period. The
provision in the Rules on Criminal Procedure regarding the interruption of
e. Blameless ignorance doctrine - The State and private prescription by institution criminal action is not applicable to violation of
complainant should not be blame for failure to institute the case ordinance because it is covered by the Rules on Summary Procedure.
immediately after the commission of the crime if they are ignorant or has Hence, the filing of complaint involving violation of ordinance for
no reasonable means of knowing the existence of a crime. Under preliminary investigation will not interrupt the running of the prescription
"blameless ignorance" doctrine (Section 2 of Act 3326 and Article 91 of (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, October
RPC), the prescription runs only upon discovery of the crime by offended 7, 2013).
party or State through a person in authority or his agent. Considering that
during the Marcos regime, no person would have dared to assail the 47. Probation -Probation shall suspend the execution of
legality of the transactions involving cronies such as behest loan, it would principal penalty of imprisonment, and accessory penalty of
be unreasonable to expect that the discovery of the unlawful transactions disqualification (Villareal vs. People, G.R. No. 151258, December 01,
was possible prior to 1986 (Disini vs. Sandiganbayan, G.R. No. 169823- 2014) but not the implementation of the civil aspect of the judgment
24 and 174764-65, September 11, 2013). Hence, the prescriptive period (Budlong, vs. Palisok, GR No. 60151, June 24, 1983).
for violation of RA No. 3019 commenced from the date of its discovery in
1992 after the Committee made an exhaustive investigation (Presidential When a judgment of conviction imposing a non-probationable
Ad hoc fact-finding committee vs. Hon. Desierto, G.R. No. 135715, April penalty is appealed or reviewed, and such judgment is modified through
13, 2011). the imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such decision
d. Discovery by a witness - Prescription runs only upon becomes final. This notwithstanding, the accused shall lose the benefit of
discovery of the crime by offended party or person in authority or his probation should he seek a review of the modified decision which already
agent. For purpose of prescription of crime, the offended party includes imposes a probationable penalty (Section 4 of PD 968 as amended by RA
the person to whom the offender is civilly liable. Thus, the widow of the No. 10707). In Colinares vs. People, G.R. No. 182748, December 13,
murdered victim is an offended party (Garcia vs. CA, G.R. No. 119063, 2011, the accused, who was convicted by the lower court of a non-
January 27, 1997). Discovery of crime by a mere witness, who is not an probationable offense of frustrated homicide, but on appeal was found
offended party, will not commence the running of prescription. guilty of a probationable offense of attempted homicide, may apply for
probation. In Villareal vs. People, G.R. No. 151258, December 1, 2014,

Page 12 of 25
accused was convicted of homicide, a non-probationable crime, by the means of dolo. Infidelity in the custody or prisoner is committed by means
trial court. However, the SC found them liable for reckless imprudence of dolo or culpa; if this crime is committed by means of dolo, it is called
resulting in homicide, which is a probationable crime, because of lack of conniving with or consenting to evasion; if committed by means of culpa, it
dolo. They can still apply for probation. is called evasion through negligence.

Under PD No. 968 as amended, crimes against public disorder Brother of a detention prisoner and convicted prisoner bribed
are non-probationable. However, under RA No. 10707, crimes against the clerk of court to falsify release order and their custodians to release
public disorder such as alarm and scandal and direct assault are now his brothers. Convicted prisoner but not the detention prisoner is liable for
probationable. evasion of service of sentence. Brother and clerk of court are liable for
delivery of prisoner from jail with respect to the escape of detention
The period of probation of a defendant sentenced to a term of prisoner and convicted prisoner. Custodians are liable for infidelity in the
imprisonment of not more than one year shall not exceed two years, and custody of prisoners with respect to the escape of detention prisoner and
in all other cases, said period shall not exceed six years. When the convicted prisoner. Brother is liable for two counts of corruption of public
sentence imposes a fine only and the offender is made to serve subsidiary officer. Clerk of court and custodians are liable for direct bribery. Clerk of
imprisonment in case of insolvency, the period of probation shall not be court and brother are liable for falsification of document as principal by
less than nor to be more than twice the total number of days of subsidiary direct participation and as principal by inducement, respectively.
imprisonment (Section 14 of PD No. 968).
50. Bribery - Plaintiff gave money to the judge, who in
48. Direct assault Simple assault (such as punching) upon consideration thereof subsequently rendered an unjust decision in favor of
an agent of a person in authority (e.g. police officer) while engaged in the the former. The judge is liable of direct bribery and rendering unjust
performance of duty constitutes simple resistance and not direct assault decision, while the plaintiff is liable of corruption of public officer. But if the
because there is no intent to defy the law and its representative at all plaintiff gave money to the judge, who subsequently rendered a decision
hazard, which is an element thereof (U.S. vs. Tabiana, G.R. No. 11847, against the former, the crime committed by the judge is indirect bribery
February 1, 1918; U.S. vs. Agustin, G.R. No. 13083, December 11, 1917; while the plaintiff is liable of corruption of public officer. The judge is not
People vs. Lapitan, G.R. No. 38226, November 17, 1933). But serious liable of direct bribery since rendering a decision against the corruptor
assault upon agent of a person in authority while engaged in the indicates that the former did not receive the money in consideration of
performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. rendering a decision in favor of the latter. It seems that the plaintiff merely
1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6, gave the money to the judge by reason of his position as such.
1910).
51. Abortion and infanticide If the fetus is killed inside the
Simple assault (such as punching) upon a person in authority womb of his mother, the crime is abortion regardless of whether he is
(e.g. mayor or chief of police) while engaged in the performance of duty viable or not (People vs. Paycana, Jr. G.R. No. 179035, April 16, 2008;
constitutes qualified direct assault. The law does not distinguish between People vs. Salufrania, G.R. No. L-50884, March 30, 1988). If the victim is
serious and simple laying of hands upon a person in authority as a killed outside the womb of the mother, the crime is: (1) abortion if the
qualifying circumstance. Hence, a simple laying of hands upon a person in victim is not viable e.g. intrauterine life is only 6 months (People vs.
authority constitutes qualified direct assault. The Tabiana principle is only Detablan, 40 O.G. No. 9, p. 30; People vs. Paycana, Jr. G.R. No. 179035,
applicable if the victim is an agent of a person in authority (U.S. vs. April 16, 2008); or (2) infanticide, if the victim is viable e.g. his intrauterine
Gumban, G.R. No. 13658, November 9, 1918). life is more than 6 months and his life is less than 3 day old; or (3) murder
if the victim is viable and his life is 3 day old or more.
If the person in authority or his agent is engaged in the actual
performance of duties at the time of the assault, the motive for the assault If the accused maltreated his wife and as a consequence, his
is immaterial. Direct assault is committed even if the motive (such as non- wife and unborn child died, the crime committed is compound crime of
payment of loan) was totally foreign to victims official function parricide and unintentional abortion (People vs. Robinos, G.R. No.
(Sarcepuedes vs. People, G.R. No. L-3857, October 22, 1951). 138453, May 29, 2002; People vs. Villanueva, G.R. No. 95851, March 01,
1995). If the accused maltreated his pregnant wife and as a consequence,
The phrase "on occasion of such performance" used in Article his wife died, and his child was expelled, and died thereafter within 3
148 of RPC means "by reasonof the past performance of official duty days, the crime committed is compound crime of parricide and infanticide.
because the purpose of the law is to allow them to discharge their duties If the accused maltreated his pregnant wife and as a consequence, his
without fear of being assaulted by reason thereof (People vs. Renegado, wife died, and his child was expelled, and died thereafter on the third day,
G.R. No. L-27031, May 31, 1974). Attacking a judge on the street by the crime committed is compound crime of double parricides.
reason of past performance of duty (such as citing the accused in
contempt) constitutes qualified direct assault (U.S. vs. vs. Garcia, G.R. In abortion and infanticide, concealment of dishonor is a
No. 6820, October 16, 1911). But attacking a retired judge by reason of special mitigating circumstance that can be appreciated in favor of the
past performance of duty is not direct assault since he is not anymore a mother and maternal grandparents but not in favor of the father or
person in authority at the time of the assault. Note: The mandatory fraternal grandparents.
retirement age of a judge is 70 year.
52. Parricide - In parricide, if the victim is his parent or child,
The status of lawyer as persons in authority remains even the the relationship can either be legitimate or illegitimate; if the victim is the
assault is committed outside the court room as long as it is perpetrated by spouse, grandparent or grandchild, the relationship must be legitimate
reason of the performance of their professional duties (Records of the (People vs. Gamez, GR No. 202847, October 23, 2013). Relationship in
Batasan, Volume Four, 1984-1985 of BP Blg. 873, which amended Article parricide is by blood except where the victim is spouse (Regalado). The
152 of RPC). qualifying circumstance of relationship in parricide is personal. Hence, it
can be appreciated against the wife but not against a co-conspirator, who
Attacking a third person who comes to the aid of a person in is not related to her husband, the victim (People vs. Bucsit G.R. No.
authority, who is a victim of direct assault, is liable for direct assault upon 17865, March 15, 1922).
an agent of a person in authority. Attacking a third person who comes to
the aid of an agent of person in authority, who is a victim of direct assault, 53. Death under exceptional circumstance -Death under
is liable for indirect direct assault. Attacking a third person who comes to exceptional circumstance is a not crime but a defense (People vs.
the aid of an agent of person in authority, who is a victim of simple Puedan, G.R. No. 139576, September 2, 2002), or an absolutory cause
resistance, is liable for physical injuries. (People vs. Talisic, G.R. No. 97961, September 05, 1997) since instead of
imposing the penalty for parricide, murder or homicide, the accused shall
49. Evasion - In evasion of service of sentence, the accused only suffer destierro, which is just a measure designed to protect accused
must be a convicted prisoner and not merely a detention prisoner. In from acts of reprisal principally by relatives of the victim (People vs.
delivery of prisoner from jail, the person, who escaped through the help of Araquel, G.R. No. L-12629, December 9, 1959). Hence, death under
the accused, is either a detention prisoner or convicted prisoner. In exceptional circumstance is not a felony within the contemplation of Article
infidelity in the custody of prisoner, the person, who escaped in 4 (People vs. Abarca, G.R. No. 74433, September 14, 1987) and
connivance with or consent of or through negligence of the accused- aggression under exceptional circumstance is not an unlawful aggression
custodian, is either a detention prisoner or convicted prisoner. Evasion in within the contemplation of self-defense (US vs. Merced, G.R. No. 14170,
the service of sentence and delivery of prisoner from jail are committed by November 23, 1918).

Page 13 of 25
clear and credible, of the victims mother or a member of the family either
Killing his wife after surprising her in the act of committing by affinity or consanguinity who is qualified to testify on matters respecting
homosexual intercourse with another woman is not death under pedigree such as the exact age or date of birth of the offended party
exceptional circumstance. Sexual intercourse mentioned in Article 247 is pursuant to Section 40, Rule 130 of the Rules on Evidence shall be
different from homosexual intercourse. Killing his mistress after surprising sufficient under the following circumstances:
in the act of committing sexual intercourse with a man is not death under
exceptional circumstance(U.S. vs. Versola, G.R. No. 10759, January 25, a. If the victim is alleged to be below 3 years of age
1916). The offender in Article 247 must be a legally married person. and what is sought to be proved is that she is less than 7 years
Killing his wife under the circumstance indicating that she had just finished old;
having sexual intercourse with another man is not death under exceptional
circumstance. He did not catch his wife in the very act of sexual b. If the victim is alleged to be below 7 years of age
intercourse, but after such act (People vs. Gonzales, G.R. No. 46310, and what is sought to be proved is that she is less than 12
October 31, 1939). years old;

54. Death in a tumultuous affray -The elements of death c. If the victim is alleged to be below 12 years of
caused in a tumultuous affray are as follows: (a) that there be several age and what is sought to be proved is that she is less than 18
persons; (b) that they did not compose groups organized for the common years old.
purpose of assaulting and attacking each other reciprocally (Note: If there
is conspiracy, this element is not present; conspirators are liable for 4. In the absence of a certificate of live birth, authentic
homicide or murder; People vs. Corpuz, G.R. No. L-36234 February 10, document, or the testimony of the victims mother or relatives concerning
1981); (c) that these several persons quarrelled and assaulted one the victims age, the complainants testimony will suffice provided that it is
another in a confused and tumultuous manner; (d) that someone was expressly and clearly admitted by the accused.
killed in the course of the affray; (e) that it cannot be ascertained who
actually killed the deceased (Not: If the killers are identified, this element 5. It is the prosecution that has the burden of proving the age
is not present; since they are identified, they are liable for homicide or of the offended party. The failure of the accused to object to the
murder; Wacoy vs. People, G.R. No. 213792, June 22, 2015); and (f) that testimonial evidence regarding age shall not be taken against him.
the person or persons who inflicted serious physical injuries or who used
violence can be identified. 6. The trial court should always make a categorical finding as
to the age of the victim (People vs. Lupac, G .R. No. 182230, September
55. Rape Among the amendments of the law on rape 19, 2012, Bersamin).
introduced under RA No. 8353 is Section 266-D, which provides Any
physical overt act manifesting resistance against the act of rape in any b. Absorption rule - If the accused commits rape and acts of
degree from the offended party, or where the offended party is so situated lasciviousness, the latter is absorbed by the former (People vs. Dy, G.R.
as to render her/him incapable of giving valid consent, may be accepted Nos. 115236-37, January 29, 2002). But the doctrine of absorption is not
as evidence in the prosecution rape (People vs. Sabadlab, G.R. No. applicable to rape through sexual assault. Inserting lighted cigarette into
175924, March 14, 2012, Bersamin). The legislators agreed that Article the genital orifice and anal orifice of the victim and raping her constitutes
266-D is intended to soften the jurisprudence on tenacious resistance two counts of rape by sexual assault and rape through sexual intercourse
(People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002). Failure to shout (People vs. Crisostomo, GR No. 196435, January 29, 2014). Inserting the
should not be taken against the victim (People vs. Rivera, GR No. penis into the mouth of the victim and into her genital orifice constitutes
200508, September 04, 2013; People vs. Rubio, G.R. No. 195239, March rape through sexual assault and organ rape (In People vs. Espera, G.R.
7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It is not No. 202868, October 02, 2013).
necessary for the victim to sustain physical injuries. She need not kick,
bite, hit or scratch the offender with her fingernails to prove that she had c. Variance rule - If the crime charged is rape, but the crime
been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004). proven is acts of lasciviousness, the accused will be convicted of the latter
because of the variance rule. Acts of lasciviousness is a lesser crime,
a. Qualifying circumstance - If the relationship between the which is necessarily included in the charge of rape. If the crime charged is
accused and the victim of rape is uncle and niece, the Information must rape through sexual intercourse, but the crime proven is rape through
alleged that the offender is a relative by consanguinity or affinity within sexual assault, the accused cannot be convicted of the latter. The
the third civil degree because there are niece-uncle relationships which variance rule is not applicable since rape through sexual assault is not
are beyond the third civil degree. However, a sister-brother relationship is necessarily included in the charge of rape through sexual intercourse. The
obviously in the second civil degree. Consequently, it is not necessary elements of these two crimes are materially and substantially different. In
that the Information should specifically state that the accused is a relative such case, the accused will be convicted of acts of lasciviousness, which
by consanguinity within the third civil degree of the victim (People vs. is necessarily included in the charge of rape through sexual intercourse
Ceredon, G.R. No. 167179, January 28, 2008). (People vs. Pareja, GR No. 202122, January 15, 2014; People vs.
Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R. No.
Knowledge of the mental disability of the victim is not an 183652, February 25, 2015).
element of rape (People vs. Caoile, GR No. 203041, June 5, 2013) but it
is an ingredient of the qualifying circumstance of mental disability, which d. Marital rape - Husband can be held liable for marital rape.
must be alleged in the information (People vs. Obogne, GR No. 199740, Article 266-A of RPC uses the term man in defining rape without regard
March 24, 2014; People vs. Lascano, G.R. No. 192180, March 21, 2012). to the rapists legal relationship with his victim. Under Article 266-C of
RPC, in case it is the legal husband who is the offender, the subsequent
In qualifying circumstances of minority and relationship in rape forgiveness by the wife as the offended party shall extinguish the criminal
and special aggravating circumstance in sexual abuse under RA No. action. RA No. 8353 has eradicated the archaic notion that marital rape
7610, the guardian must be a person who has legal relationship with his cannot exist because a husband has absolute proprietary rights over his
ward. He must be legally appointed was first (People vs. Flores G.R. No. wifes body and thus her consent to every act of sexual intimacy with him
188315, August 25, 2010). is always obligatory or at least, presumed (People vs. Jumawan, G.R. No.
187495, April 21, 2014),
The Pruna guidelines in appreciating age, either as an element
of the crime or as a qualifying circumstance, are as follows. e. Public crime - Rape is no longer considered a private crime
or that which cannot be prosecuted, except upon a complaint filed by the
1. The best evidence to prove the age of the offended party is aggrieved party. Hence, pardon by the offended party of the offender in
an original or certified true copy of the certificate of live birth of such party. the crime of rape will not extinguish the offender's criminal liability (People
vs. Bonaagua, GR No. 188897, June 06, 2011).
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which show f. Statutory rape - The term statutory rape should only be
the date of birth of the victim would suffice to prove age. confined to situations where the victim of rape is a person less than 12
years of age. If the victim of rape is a person with mental abnormality,
3. If the certificate of live birth or authentic document is shown deficiency, or retardation, the crime committed is simple rape committed
to have been lost or destroyed or otherwise unavailable, the testimony, if

Page 14 of 25
against a person "deprived of reason" (People vs. Dalan, G.R. No. presence of complainant's students and within hearing distance of her co-
203086, June 11, 2014, Bersamin). teachers, rules out a conclusion that the accused was actuated by a lustful
design. The crime committed is merely unjust vexation.
h. Criminal touching - Touching of either labia majora or labia
minora of the pudendum of the victim by an erect penis of the accused In People vs. Sumingwa, G.R. No. 183619, October 13, 2009,
capable of penetration consummates the crime (People vs. Campuhan, embracing, dragging and kissing in front of her friend constitute unjust
G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932, vexation.
October 19, 2011, Bersamin). Touching the labia by instrument or object
(such as tongue or finger) also consummates the crime of rape through 56. Perjury - Person cannot be held liable for perjury involving
sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011). a complaint affidavit for theft based on the execution of affidavit of
desistance. There is no perjury solely on the basis of two contradictory
In People vs. Nuyok, G.R. No. 195424, June 15, 2015, statements. There must be further evidence that will show which of the
Bersamin, the commission of rape can be established by circumstantial two sworn statements is false (U.S. vs. Capistrano 40 Phil. 902).
evidence even if the victim, being the sole witness, was rendered
unconscious during its commission. Accused slapped victim and punched In a verified answer, accused denied the allegation in the
her in the stomach. She was rendered unconscious. When she regained complaint for collection on his loan obligation. He is not liable for perjury
consciousness, she found blood in her panties, and felt pain in her vagina. since verification is not required in answer in a civil case. He cannot be
Accused was convicted of rape. prosecuted for perjury on the basis of an alleged falsehood made in a
verified pleading, which is not mandated by law to be verified (Saavedra,
In People vs. Belgar, G.R. No. 182794, September 08, 2014, Jr. vs. Department of Justice, G.R. No. 93178, September 15, 1993;
Bersamin, the accused had injected an unknown substance into her belly Flordelis vs. Himalaloan, G.R. No. L-48088, July 31, 1978).
that had then rendered her unconscious. Upon waking up, she had found
herself lying naked on the ground; she had felt pain in her vagina, which The fact that subornation of perjury is not expressly penalized
held a red and white substance in it; and he had been the only person last in RPC does not mean that the direct induction of a person by another to
seen by her before she had passed out. The lack of direct evidence commit perjury has ceased to be a crime, because said crime is fully
against him notwithstanding, these circumstances sufficed to prove his within the scope of provision on principal by inducement (People vs.
guilt beyond reasonable doubt because they formed an unbroken chain Pudol, G.R. No. 45618, October 18, 1938).
that unerringly showed Belgar, and no other, had committed the rape
against her. Making untruthful statement (failure to disclose previous
criminal conviction) in a sworn application for the patrolman examination
If the offender touches the body of the victim through force, constitutes perjury (People vs. Cruz, 108 Phil. 255). Making untruthful
without touching the labia of her pudendum but with clear intention to have statement (failure to disclose pending criminal case) in unsworn PDS
sexual intercourse, the crime committed is attempted rape. Intent to have constitutes falsification of document (Sevilla vs. People, G.R. No. 194390,
sexual intercourse is present if is shown that the erectile penis of the August 13, 2014). If there are several mistakes the PDS including those
accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, which are not important, accused cannot be convicted of falsification of
October 08, 2014, Bersamin) or the accused actually commenced to document since it appears that failure to disclose pending criminal case is
force his penis into the victim's sexual organ (People vs. Banzuela, G.R. not deliberate. Hence, accused is only liable for reckless imprudence
No. 202060, December 11, 2013). resulting in falsification (Sevilla vs. People, supra).

For there to be an attempted rape, the accused must have Making it appears that a person participated in an act or
commenced the act of penetrating his sexual organ to the vagina of the proceeding where in fact he did not is not the actus reus in perjury. Hence,
victim but for some cause or accident other than his own spontaneous a mayor, who made it appear that affiants swore and signed the affidavit
desistance, the penetration, however, slight, is not completed (People vs. before him where in fact they did not, is liable of falsification of document
Bandril, G.R. No. 212205, July 06, 2015). and not perjury (Lonzanida vs. People, G.R. Nos. 160243-52, July 20,
2009).
If the offender touches the body of the victim through force,
with lewd design but without clear intention to have sexual intercourse, the 57. Falsification - Falsification of a public document is
crime committed is acts of lasciviousness. Kissing and undressing the consummated upon the execution of the false document. What is
victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching punished in falsification of public document is principally the undermining
her vagina by the hand of the accused (People vs. Banzuela, G.R. No. of the public faith and the destruction of truth as solemnly proclaimed
202060, December 11, 2013), touching the breast and thighs of victim and therein. The fact that accused did not benefit from, or that the public was
kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); or not prejudiced by the falsified resolution is not a defense (Goma vs. CA,
rubbing his penis on the mons pubis of the pudendum (People vs. G.R. No. 168437, January 08, 2009).
Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts of
lasciviousness because intent to have sexual intercourse is not clearly When the offender commits falsification of public, official or
shown, but lewd design is established. commercial document as a necessary means to commit malversation
(People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin vs.
In People vs. Dadulla, G. R. No. 172321, February 9, 2011, Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of
Bersamin, the accused's act of opening the zipper and buttons of AAA's Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs.
shorts, touching her, and trying to pull her from under the bed manifested People, G.R. No. 127327, February 13, 2009, Tanenggee vs. People,
lewd designs, not intent to lie with her. The evidence to prove that a G.R. No. 179448, June 26, 2013) or theft (People vs. Salonga, G.R. No.
definite intent to lie with AAA motivated the accused was plainly wanting, 131131, June 21, 2001), the crime committed is complex crime proper
therefore, rendering him guilty only of acts of lasciviousness under Article 48 of RPC.

In Cruz vs. People, G.R. No. 166441, October 08, 2014, In De Castro vs. People, G.R. No. 171672, February 02, 2015,
Bersamin, touching her genitalia with his hands and mashing her breasts Bersamin, as a bank teller, she took advantage of the bank depositors
are "susceptible of double interpretation." These circumstances may show who had trusted in her enough to leave their passbooks with her upon her
that the intention of the accused is either to commit rape or simple instruction. Without their knowledge, however, she filled out withdrawal
seduction (or acts of lasciviousness). Since intent to have sexual slips that she signed, and misrepresented to her fellow bank employees
intercourse is not clear, accused could not be held liable for attempted that the signatures had been verified in due course. Her misrepresentation
rape. Hence, he is only liable for acts of lasciviousness. to her co-employees enabled her to receive the amounts stated in the
withdrawal slips. She thereby committed two crimes, namely: estafa, by
If the offender touches the body of the victim without lewd defrauding the bank, her employer, in the various sums withdrawn from
design or without clear intention to satisfy lust, the crime committed is the bank accounts of depositors; and falsification of a commercial
unjust vexation. document, by forging the signatures of depositor in the withdrawal slips to
make it appear that the depositor concerned had signed the respective
In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November slips in order to enable her to withdraw the amounts. Such offenses were
29, 1967, accused kissed and embraced his co-teacher while the latter complex crimes, because the estafa would not have been consummated
was conducting her class. The factual setting, i.e., a schoolroom in the without the falsification of the withdrawal slips.

Page 15 of 25
59. Estafa In offenses against property (theft or estafa), if the
When the offender commits falsification of public, official or subject matter of the offense is generic and not identifiable (e.g.
commercial document as a means to conceal malversation (People vs. money), an error in the designation of the offended party is fatal. However,
Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978; People vs. if the subject matter of the offense is specific and identifiable (e.g. check
Villanueva, G.R. No. 39047, October 31, 1933, En Banc), estafa (People or jewelry), an error in the designation of the offended party is immaterial
vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito, (Senador vs. People, G.R. No. 201620, March 06, 2013). In oral
G.R. No. 36979, November 23, 1932) or theft, the crimes are separate. defamation, a crime against honor, the identity of the person against
This is not complex crime proper since one is not a necessary means to whom the defamatory words were directed is a material element. Thus, an
commit another. erroneous designation of the person injured is material (People vs. Uba,
106 Phil. 332).
Distinction should be made as to when the crimes of Estafa
and Falsification will constitute as one complex crime and when they are Demand is not an element of estafa through misappropriation.
considered as two separate offenses. The complex crime of estafa Demand is only important if there is no direct evidence of misappropriation
through falsification of documents is committed when one has to falsify because failure to account for the property in trust upon demand is
certain documents to be able to obtain money or goods from another circumstantial evidence of misappropriation. In this connection, verbally
person. In other words, the falsification is a necessary means of inquired about the money entrusted to the accused is tantamount to a
committing estafa. If the falsification is committed to conceal the demand (Asejo vs. People, G.R. No. 157433, July 24, 2007). On the other
misappropriation, two separate offenses of estafa and falsification are hand, demand is not necessary where there is direct evidence of
committed. In the instant case, when accused collected payments from misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015).
the customers, said collection which was in her possession was at her This rule on demand is applicable to malversation (Munib vs. People, G.R.
disposal. The falsified or erroneous entries which she made on the Nos. 163957-58, April 07, 2009).
duplicate copies of the receipts were contrived to conceal some amount of
her collection which she did not remit to the company. Hence, the accused Where the borrower is importers acquiring goods for resale,
is liable for separate crimes of estafa and falsification of document (Patula goods sold in retail are often within his custody until they are purchased.
vs. People, G.R. No. 164457, April 11, 2012, Bersamin). This is covered by trust receipt agreement. Failure to return the unsold
good or deliver the proceeds of sale to the bank is estafa in relation to PD
Other view: If falsification is committed for purpose of enabling No. 115 (Trust Receipt Law). Where the borrower is engaged in
the accused to commit malversation (People vs. Silvanna, G.R. No. L- construction, the materials are often placed under custody of his clients,
43120, July 27, 1935; Zafra vs. People, G.R. No. 176317, July 23, 2014, who can only be compelled to return the materials if they fail to pay. Since
Bersamin) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140) the bank and the contractor know that the return of the materials is not
with less risk of being detected, the accused is liable for complex crime possible, this is not covered by trust receipt agreement. This transaction
proper. becomes a mere loan, where the borrower is obligated to pay the bank the
amount spent for the purchase of the goods. The accused is not liable for
In Zafra vs. People, G.R. No. 176317, July 23, 2014, estafa because of the constitutional provision of non-imprisonment for
Bersamin, there is a big disparity between the amount covered by nonpayment of debts (Yang vs. People, G.R. No. 195117, August 14,
receipts issued to the taxpayer, and the amount for the same receipts in 2013).
the tax collection reports indicating the falsification resorted to by the
accused in the official reports he filed, thereby remitting less than what In other forms of swindling under Article 316, (1) and (2) of
was collected from taxpayers concerned, resulting to the loss of revenue RPC, offender made false representation involving real property and act of
for the government as unearthed by the auditors. Thus, the accused is ownership such as selling it, which causes damage to third person. In
liable for complex crime of malversation through falsification of paragraph 1, the accused represents that he owned the property, while in
documents. paragraph 2, he expressly represents in the deed of conveyance that the
property is free from encumbrance (Estrellado-Mainar vs. People, G.R.
If the falsification of a private document (demand letter, letter of No. 184320, July 29, 2015) or "como libre". These words "como libre" in
guarantee) is committed as a means to commit estafa, the crime the Spanish Penal Code are deemed incorporated in the RPC (Naya vs.
committed is falsification only. Under the common element doctrine, the Abing, G.R. No. 146770, February 27, 2003).
use of damage as an element in falsification of private document
precludes the re-use thereof to complete the elements of estafa. Hence, 60. Theft - To "take" under theft the Revised Penal Code does
estafa is not committed because the element of damage is not not require asportation or carrying away (Medina vs. People, G.R. No.
present(Batulanon vs. People, G.R. No. 139857, September 15, 2006); 182648, June 17, 2015). It is not an indispensable requisite of theft that a
U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, pickpocket should carry, more or less far away, a wallet taken from its
G.R. No. L-34516, November 10, 1931). There is no complex crime of owner (People vs. Mercado, G.R. Nos. L-45471 and L-45472, June 15,
estafa through falsification of private document. 1938).

If a person commits falsification of private document to conceal The term "personal property" in RPC should be interpreted in
malversation or estafa, the crime is estafa only. Under the common the context of the Civil Code. Consequently, any personal property,
element doctrine, the use of damage as an element in estafa precludes tangible or intangible, corporeal or incorporeal, capable of appropriation
the re-use thereof to complete the elements of falsification. Hence, estafa can be the object of theft. Business may be appropriated under Bulk Sales
is not committed because the element of damage is not present (See: Law. Thus, the business of providing telecommunication and the
People vs. Beng, 40 O.G. 1913). telephone service is a personal property (Laurel vs. Abrogar, G.R. No.
155076, January 13, 2009). Since asportation is not an element of theft, a
58. Malversation - For purpose of malversation, national personal property can to be the object of theft as along as it is capable of
officer shall be considered as an accountable officer if he has custody or appropriation although it is not capable of "asportation" (Medina vs.
control of public property by reason of the duties of his office (Government People, G.R. No. 182648, June 17, 2015). Intangible property is not
Auditing Code of the Philippines. The Local Government Code expanded capable of asportation, and yet, it can be an object of theft since is
the concept of accountable local officer. Local officer shall be considered capable of asportation.
as an accountable officer if he has possession or custody of local
government funds because of the nature of their functions such a treasure If the property is tangible, taking is deemed complete from the
or has participated in the use or application of thereof (Zoleta vs. moment the offender gains possession over the thing, even if he has no
Sandiganbayan, G.R. No. 185224, July 29, 2015) such as a mayor, whose opportunity to dispose of the same (People vs. Bustinera, G. R. No.
signature is needed to disburse municipal funds (Manuel vs. Hon. 148233, June 8, 2004). If the property is intangible, taking includes
Sandiganbayan, G.R. No. 158413, February 08, 2012). controlling the destination of this property stolen to deprive the owner of
the property (e.g. the use of a meter tampering, use of a device to
Malversation is committed either intentionally or by negligence. fraudulently obtain gas, and the use of a jumper to divert electricity). Using
The dolo or the culpa is only a modality in the perpetration of the felony. device to control the destination of international telephone call under the
Even if the mode charged differs from the mode proved, the same offense telecommunication system of PLDT without its consent to earn by
of malversation is still committed (Mesina vs. People, G.R. No. 162489, charging user of the phone at the expense of PLDT is taking the property
June 17, 2015, Bersamin). of PLDT of providing telecommunication service (Laurel vs. Abrogar,
supra).

Page 16 of 25
the same character of that made by one who originally found the same
a. No frustrated theft - If the bulky goods are taken by the (People vs. Avila, G.R. No. L-19786, March 31, 1923).
accused inside a compound (such as SM), theft is consummated even if
the accused failed to bring out the stolen goods from the compound, d. Qualified theft - If the property is not accessible to the
which makes him unable to freely dispose it. Inability to dispose the stolen employee, taking it is simple theft (Viray vs. People, G.R. No. 205180,
property is not an element of theft. Unlawful taking is the element which November 11, 2013). On the other hand, if the property is accessible to
produces the felony in its consummated stage. Without unlawful taking, the employee, taking it is qualified theft because of the circumstance of
the offense could only be attempted theft, if at all. Thus, theft cannot have abuse of confidence (Yongco vs. People,G.R. No. 209373, July 30, 2014).
a frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21,
2007). If the accused is charged with frustrated theft, he could not be 61. Arson Destructive arson is characterized as heinous
convicted of the crime charged because theft has no frustrated stage. crime; while simple arson under PD No. 1613 is a crime manifesting a
Neither could he be convicted of consummated theft since it was not lesser degree of perversity. Simple arson contemplates the malicious
alleged in the information. But he could be convicted of attempted theft burning of property not included in Article 320 of the RPC (People vs.
because this is a lesser crime, which is necessarily included in the charge Macabando, GR No. 188708, July 31, 2013). Burning of inhabited house
of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015). or dwelling or personal property is simple arson under Section 3 of P.D.
No. 1613 because it is not included in Article 320 of RPC.
b. Theft through misappropriation - Misappropriation of
personal property received by the accused with consent of the owner is If the main objective is to kill the victim in a building, and fire is
theft or carnapping or cattle rustling if his possession is physical or de resorted to as the means to accomplish such goal, the crime committed
facto, or estafa through misappropriation if it is legal or de jure. is murder only. Murder qualified by means of fire absorbs arson since the
latter is an inherent means to commit the former (People vs. Cedenio,
If the accused received the car from the owner for repair the G.R. No. 93485, June 27, 1994). Single act of burning the building to kill
possession is physical, and thus, misappropriation thereof is carnapping two persons constitutes compound crime of double murders (People vs.
(Santos vs. People, G.R. No. 77429 January 29, 1990).If the accused Gaffud, G.R. No. 168050, September 19, 2008).
received the property to bring it to a goldsmith for examination and to
immediately return it back to the owner, his possession is physical, and One has deliberately set fire to a building is presumed to have
thus, misappropriation thereof is theft (U.S. v. De Vera, G.R. No. L- intended to burn the building (People vs. De Leon, G. R. No. 180762,
16961, September 19, 1921). If the accused received the property with March 4, 2009). Since intent to burn is presumed, intent to kill must be
authority to sell it (Guzman vs. CA, 99 Phil. 703), or money with authority established beyond reasonable doubt. Failure to show intent to kill, the
to use it to buy palays (Carganillo vs. People, G.R. No. 182424, accused shall be convicted of arson with homicide and not murder
September 22, 2014), or with full freedom and discretion on how to use it (People vs. Baluntong, G.R. No. 182061, March 15, 2010).
to facilitate its remittance to BIR as payment of tax and reduce the amount
due (Velayo vs. People, G.R. No. 204025, November 26, 2014), his If the main objective is to burn the building, but death results by
possession is juridical. Thus, failure of the agent to return it is estafa reason or on the occasion of arson, the crime is arson with homicide, and
(Guzman v. Court of Appeals, 99 Phil. 703; Tria vs. People, G.R. No. the resulting homicide is absorbed (People vs. Villacorta, 172468, October
204755, September 17, 2014). 15, 2008).

A franchise holder must personally operate the motor vehicle. If the objective is to kill, and in fact the offender has already
That is the reason why government regulation prohibits operator of motor done so, and arson is resorted to as a means to cover up the killing, the
vehicle from leasing it. In the eye of the law the driver of taxi or passenger offender may be convicted of two separate crimes of either homicide or
jeepneyunder boundary arrangement was only an employee of the owner murder, and arson (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
rather than a lessee. For being an employee, his possession of the
jeepney is physical (People v. Isaac G.R. No. L-7561, April 30, 1955), and 62. Bigamy After the consummation of the crime of bigamy,
thus, misappropriation thereof is carnapping (People vs. Bustinera, G. R. declaration of nullity of first marriage and/or second marriage is not a
No. 148233, June 8, 2004) defense on the following grounds:

As a rule, the possession of the employee such as bank teller, First ground - After the consummation of bigamy, subsequent
collector or cash custodian is only physical possession. Hence, declaration of nullity of the first and/or the second marriage is not a
misappropriation of property is qualified theft. Abuse of confidence is defense since it is not a mode of extinguishing criminal liability listed in
present since the property is accessible to the employee (People v. Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009).
Locson, G.R. No. L-35681, October 18, 1932; Matrido vs. People, G.R.
No. 179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466, Bigamy is consummated upon contracting second marriage
February 25, 2015; Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; despite the subsistence of the first marriage consummates. Once the
Balerta vs. People, G.R. No. 205144, November 26, 2014). However, if crime consummates, criminal liability will attach to the accused and will
the employee is an officer of the companywith discretion on how to use not be extinguished except through a mode mentioned in Article 89 of
property or fund of the company,his possession is juridical; hence, RPC as death, pardon etc. After the consummation of bigamy or
misappropriation thereof is estafa. Thus, the following officers are liable celebration of the second marriage, the criminal liability shall not be
for estafa through misappropriation (1) a corporate officer with discretion extinguished by subsequent events such as declaration of nullity of
option on how to use bending machine without the participation of the marriage not mentioned in Article 89 of RPC.
corporation(Aigle vs. People, G.R. No. 174181, June 27, 2012); (2) bank
President with discretion on how to administer fund (People vs. Go, G.R. No. Second ground - To make declaration of nullity of first marriage
191015, August 6, 2014), and (3) Liaison Officer of a pawnshop with and/or second marriage after the consummation of the crime of bigamy as
discretion on how to secure or renew licenses and permits (Gamboa vs. a defense would render the States penal laws on bigamy completely
People, G.R. No. 188052, April 21, 2014). nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape liability for bigamy
In robbery with intimidation of persons, the intimidation (Tenebro vs. The Honorable Court of Appeals, G.R. No. 150758, February
consists in creating fear in the mind of a person in view of a risk or evil 18, 2004; Walter vs. People, GR No. 183805, July 03, 2013).
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 Third ground - To avoid criminal liability, the declaration of
the delivery of the money. Threat of prosecution and confiscation of the nullity of the first marriage must be made previous to the consummation of
logs by DENR officers is an intimidation within the meaning of robbery bigamy, which is required by Article 40 of the Family Code that
(Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009). provides: The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
c. Lost property - Any person who, having found lost property, such previous marriage void. A declaration of the absolute nullity of the
shall fail to deliver the same to the local authorities or to its owner, is liable first marriage is now explicitly required either as a cause of action or a
for theft. If the finder surrenders the property found to a policeman, who ground for defense in bigamy (People vs. Teves, G.R. No. 188775,
fails to deliver it the owner, the policeman is liable for theft. He acquired August 24, 2011). Even though the first marriage was contracted prior to
the position occupied by the actual finder. Appropriating the property is of the Family Code, the rule is the same since Article 40, which is a rule of
procedure, should be applied retroactively. The reason is that as a general

Page 17 of 25
rule, no vested right may attach to, nor arise from, procedural laws (Jarillo constituting a marriage ceremony: first, there should be the personal
vs. People, G.R. No. 164435, June 29, 2010). appearance of the contracting parties before a solemnizing officer;
and second, their declaration in the presence of not less than two
Article 40 of the Family Code is only applicable if what is witnesses that they take each other as husband and wife (Ronulo vs.
involved is declaration of nullity of the first marriage. Hence, if what is People, G.R. No. 182438, July 02, 2014).
involved is post-bigamy declaration of nullity of the first marriage, this is
not a defense because of the first, second and third grounds. If what is 64. Libel - Under Article 360 of the RPC, the publisher, and
involved is post-bigamy declaration of nullity of the second marriage, this editor of newspaper, shall be responsible for the defamations contained
is not a defense because of the first and second grounds. therein to the same extent as if he were the author thereof. The publisher
and editors cannot disclaim liability for libelous articles that appear on their
Post-bigamy declaration of nullity of the first or second paper by simply saying they had no participation in the preparation of the
marriage is not a defense whether the ground for nullity is psychological same. They cannot say that Tulfo was all alone in the publication
incapacity (Mercado vs. Tan, G.R. No. 137110, August 1, 2000) or lack of of Remate, on which the defamatory articles appeared. It is not a matter of
license and affidavit of cohabitation (Lasanas vs. People, G.R. No. whether or not they conspired in preparing and publishing the subject
159031, June 23, 2014, Bersamin) or even though the declaration is articles, because the law simply so states that they are liable as if they
obtained before the filing of the complaint for bigamy (People vs. Odtuhan, were the author (Tulfo vs. People, G.R. No. 161032, September 16,
GR No. 191566, July 17, 2013). 2008).

Exceptions: Comment is not fair if there is reckless disregard of knowing


whether the defamatory imputation is false or not. Hence, the accused
1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 cannot use the fair comment principle as a defense. In Erwin Tulfo vs.
O.G. 4079, the second marriage was celebrated one day before the People, G.R. No. 161032, September 16, 2008 - Journalists bear the
issuance of the marriage license. In this situation, the accused can use burden of writing responsibly when practicing their profession, even when
the voidness of the second marriage as a defense in bigamy. The writing about public figures or matters of public interest. The report made
accused did not cause the falsification of public documents in order to by Tulfo describing a lawyer in the Bureau of Customs as corrupt cannot
contract a second marriage. He did not fraudulently secure a Certificate of be considered as "fair" and "true" since he did not do research before
Marriage, and later used this criminal act as basis for seeking her making his allegations, and it has been shown that these allegations were
exculpation. The crime committed is not bigamy under Article 349 baseless. The articles are not "fair and true reports," but merely wild
(Santiago vs. People, G.R. No. 200233, July 15, 2015) but marriage accusations. He had written and published the subject articles with
contracted against the provisions of the law under Article 350 (People vs. reckless disregard of whether the same were false or not.
Peralta, CA-GR No. 13130-R, June 30, 1955).
65. Incriminating an innocent person - As a general rule,
The De Lara principle is only applicable if the two requisites are planting of evidence to incriminate an innocent person constitutes the
applicable: (1) the accused did not did not cause the falsification of public crime of incriminating an innocent person under Article 363 of RPC.
documents in order to contract a second marriage. As a rule, the accused However, if the incriminatory evidence planted is dangerous drugs or
cannot use the voidness of the second marriage as a defense in bigamy unauthorized explosives, loose firearm or ammunition, the crime
because she fraudulently secured a certificate of marriage, and that is committed is planting of evidence under RA 9165 for the dangerous drug,
presenting a falsified affidavit of cohabitation instead of marriage license PD 1866 as amended by RA 9516 for the explosive and RA No. 10591 for
(Santiago vs. People, G.R. No. 200233, July 15, 2015); and (2) the loose firearm.
second marriage is null and void for lack of marriage license; if the first
marriage is declared null and void due to lack of marriage license or If unlawful arrest is committed to plant incriminatory evidence,
affidavit of cohabitation, this is not a defense because Article 40 of the the crime committed is complex crime of incriminating innocent person
Family Code required declaration of nullity before the celebration of through unlawful arrest (People vs. Alagao, G.R. No. L-20721, April 30,
second marriage (Lasanas vs. People, G.R. No. 159031, June 23, 2014, 1966). If incriminatory evidence is planted to justify an unlawful arrest, the
Bersamin). crime committed is complex crime of unlawful arrest through incriminating
an innocent person. But if the incriminatory evidence is dangerous drugs,
2. The principle that one who enters into a subsequent explosive or loose firearm, unlawful arrest and planting of evidence are
marriage without first obtaining such judicial declaration is guilty of separate crimes. Complex crime is not committed since planting of
bigamy is not applicable where the parties merely signed the marriage evidence, which is punishable under special law, cannot be made a
contract without marriage ceremony performed by a duly authorized component of a complex crime.
solemnizing officer. The mere private act of signing a marriage contract
bears no semblance to a valid marriage and thus, needs no judicial Stealing property and planting the stolen property to impute to
declaration of nullity. Hence, bigamy is not committed (Morigo vs. People, the victim the crime of theft constitutes complex crime of incriminating an
G.R. No. 145226, February 06, 2004). innocent person through theft.

3. X contracted three marriages. His first wife is already dead Planting of live bullet by NAIA personnel to extort money from
when X contracted his third marriage. a passenger of an airline constitutes separate crime of planting of
evidence and consummated or attempted robbery.
X is liable for bigamy involving the second marriage on the
basis of his first marriage because the first was existing when the 66. Imprudence or negligence To make a doctor liable for
contracted the second. reckless imprudence resulting to homicide, it must be shown that he did
not treat his patient in accordance with the standard of care and skill
X is not liable for bigamy involving the third marriage on the commonly possessed and exercised by similar specialists under similar
basis of the first marriage since the first has already been extinguished by circumstances. Failure to present specialist as witness to testify on this
reason of death of the first wife when he contracted the third. standard is fatal to the prosecution of the case (Solidum vs. People, GR
No. 192123, March 10, 2014, Bersamin).
X is not liable for bigamy involving the third marriage on the
basis of the second marriage since the second is null and void for being a There are two views on whether culpa is a crime or just a mode
bigamous marriage. of committing a crime.

Other view: X is liable for bigamy involving the third marriage First view: Culpa under Article 3 of the Revised Penal Code is
on the basis of the second marriage. Although the second is null and void not a crime but just a mode of committing a crime. Applying this rule, there
for being a bigamous marriage, X should have first caused the declaration are three crimes committed, to wit: (1) reckless imprudence resulting in
of nullity of the second marriage for being bigamous before contracting a homicide, (2) reckless imprudence resulting in damage to property and (3)
third marriage. reckless imprudence resulting in slight physical injuries. However, single
reckless act resulting in homicide and damage to property is a complex
63. Illegal marriage A priest, who performed a marriage crime (Angeles vs. Jose, G.R. No. L-6494, November. 24, 1954). But the
ceremony despite knowledge that the couple had no marriage license, is slight physical injuries that resulted from the same recklessness shall be
liable for illegal marriage. The law sets the minimum requirements treated as a separate crime. Since this is a light felony, it cannot be made

Page 18 of 25
a component of a complex crime (Lontoc, Jr. vs. Gorgonio, L37396, April defense (Ngo vs. People, G.R. No. 155815, July 14, 2004). In BP Blg. 22,
30, 1979; People vs. Turla, G.R. No. L-26388, February 14, 1927; the check involved must be issued to apply on account or for value.
Gonzaga vs. People, G.R. No. 195671, Jan. 21, 2015; 1983, 2011, and Deliberations in the Batasan Pambansa indicate that account refers to
2012 Bar Exams). pre-existing obligations; while for value means an obligation incurred
simultaneously with the issuance of the check.
Under this view, the motion to quash shall be denied because
reckless imprudence resulting in slight physical injuries and the complex e. Notice of dishonor To be guilty of this crime the accused
crime of reckless imprudence resulting in homicide and damage to must have used the check in order to defraud the complainant. However,
property are separate crimes, and hence, the conviction of the first is not a prima facie evidence of deceit exists by law upon proof that the drawer of
bar to the continued prosecution of the second. the check failed to deposit the amount necessary to cover his check within
three days from receipt of the notice of dishonor (People vs. Reyes,
Second view: Reckless imprudence under Article 365 is a supra). But receipt of notice of dishonor is not an element of estafa
single quasi-offense by itself and not merely a means to commit other through issuance of bouncing check.
crimes; hence, conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its The giving of the written notice of dishonor does not only
various consequences. The essence of the quasi-offense of criminal supply the proof for the second element of violation of BP Blg. 22 arising
negligence under article 365 of the Revised Penal Code lies in the from the presumption of knowledge the law puts up but also affords the
execution of an imprudent or negligent act that, if intentionally done, would offender due process. The law thereby allows the offender to avoid
be punishable as a felony. Thus the law penalizes the negligent or prosecution if she pays the holder of the check the amount due thereon,
careless act, not the result thereof. The gravity of the consequence is only or makes arrangements for the payment in full of the check by the drawee
taken into account to determine the penalty. It does not qualify the within five banking days from receipt of the written notice that the check
substance of the offense. And, as the careless act is single, whether the had not been paid. The Court cannot permit a deprivation of the offender
injurious result should affect one person or several persons, the offense of this statutory right by not giving the proper notice of dishonor (Resterio
criminal negligence remains one and the same, and cannot be split into vs. People, G.R. No. 177438, September 24, 2012, Bersamin).
different crimes and prosecutions (Ivler vs. Modesto-San Pedro, G.R. No.
172716, November 17, 2010; Quizon vs. Hon. Justice of Peace, July 28, Demand letter was given with the security guard without proof
1955, GR N L-6641; People vs. Buan, L-25366, March 29, 1968; 1952, that it reached accused and through registered mail which was returned
1959, 1961 and 2013 Bar Exams). with the notation "N/S Party Out 12/12/05". Since there is proof that
accused received the notice of dishonor, he was acquitted. However he is
Under this view, the motion to quash shall be granted because still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).
reckless imprudence resulting in homicide, damage to property and slight
physical injuries constitute a single crime, and hence, the conviction of The mere presentment of the two registry return receipts was
culpable felony involving slight physical injuries is a bar to the continued not sufficient to establish the fact that written notices of dishonor had been
prosecution of the same culpable felony involving homicide and damage sent to or served on the petitioner as the issuer of the check. Considering
to property. that the sending of the written notices of dishonor had been done by
registered mail, the registry return receipts by themselves were not proof
67. BP 22 Settled is the rule that estafa will not lie when the of the service on the accused without being accompanied by the
parties waive the negotiable character of a check, and instead treat the authenticating affidavit of the person who had actually mailed the written
same as proof of an obligation. For instance, when there is an agreement notices of dishonor, or without the testimony in court of the mailer on the
between the parties at the time of the issuance and postdating of the fact of mailing (Resterio vs. People, G.R. No. 177438, September 24,
checks that the obligee shall not encash or present the same to the bank, 2012, Bersamin).
the obligor cannot be prosecuted for estafa because the element of deceit
is lacking (People vs. Villanueva, G.R. No. 163662, February 25, 2015, For notice by mail, it must appear that the same was served on
Bersamin). In BP Blg. 22, the fact that the check is not intended to be the addressee or a duly authorized agent of the addressee. In fact, the
encashed or deposited in a bank is not a defense. This check produces registry return receipt itself provides that [a] registered article must not be
the same effect as ordinary check. What the law punishes is the issuance delivered to anyone but the addressee, or upon the addressees written
of a rubber check itself and not the purpose for which the check was order, in which case the authorized agent must write the addressees
issued nor the terms and conditions relating to its issuance (Cueme vs. name on the proper space and then affix legibly his own signature below
People, G.R. No. 133325, June 30, 2000). it. In the case at bar, no effort was made to show that the demand letter
was received by petitioners or their agent. All that we have on record is
a. Knowledge of the payee - When the payee was informed an illegible signature on the registry receipt as evidence that someone
that the checks are not covered by adequate funds, bad faith received the letter. As to whether this signature is that of one of the
or estafa shall not arise People vs. Villanueva, G.R. No. 163662, February petitioners or of their authorized agent remains a mystery (Resterio vs.
25, 2015, Bersamin). In BP Blg. 22, the facts that the payee had People, G.R. No. 177438, September 24, 2012, Bersamin).
knowledge that he had insufficient funds at the time he issued the check is
immaterial as deceit is not an essential element of the offense under this The wife of complainant verbally informed the accused that the
law. The gravamen of the offense under BP Blg. 22 is the issuance of a check had bounced did not satisfy the requirement of showing that written
bad check; hence, malice and intent in the issuance thereof are notices of dishonor had been made to and received by the petitioner. The
inconsequential (Rigor vs. People, G.R. No. 144887, November 17, 2004). verbal notices of dishonor were not effective because it is already settled
that a notice of dishonor must be in writing (Resterio vs. People, G.R. No.
b. No account with the bank - According to the accused, she 177438. September 24, 2012, Bersamin).
did not own the check that she issued to complainant as collateral. He
merely borrowed it from a friend. What BP Blg. 22 punished was the mere Under the Negotiable Instruments Law, notice of dishonor is
act of issuing a worthless check. The law did not look either at the actual not required where the drawer has no right to expect that the bank will
ownership of the check. The law penalizes a person who indulges in the honor the check. Since bank account of accused was already closed even
making and issuing of unfunded check on an account belonging to before the issuance of the subject check, he had no right to expect the
another with the latters consent. Also, that the check was not intended to drawee bank to honor his check. Hence, he is not entitled to be given a
be deposited was really of no consequence to her incurring criminal notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26, 2008,
liability under BP 22 (Resterio vs. People, G.R. No. 177438, September ).The crime involved in Lopez vs. People is estafa through issuance of
24, 2012, Bersamin). bouncing check. However, it is submitted the Lopez principle can be
applied to violation of BP 22.
c. Pre-existing obligation - In order to
constitute estafa through issuance of bouncing check, the postdating or f. Payment - Payment of check before the filing of information
issuing a check must be the efficient cause of the defraudation. In sum, is a defense. The spirit of B.P. Big 22, which is to protect the stability of
the offender must be able to obtain property from the offended party by the banking system, would not be served by penalizing people who have
reason of the issuance of the check (People vs. Reyes, GR No. 157943, corrected their mistakes and restituted damages even before charges
September 4, 2013). Thus, In estafa, the fact that check was issued in have been filed against them. In sum, by making payment of the check
payment of pre-existing obligation is a valid defense (People vs. Reyes, before the filing of the information, the purpose of the law has already
G.R. No. 154159, March 31, 2005). But in BP Blg. 22, it is not a valid been attained. Payment of check after the filing of informationis not a

Page 19 of 25
defense. Since there is no showing of intention to mitigate the bad effects isunder 12 years of age (People vs. Chingh, G.R. No. 178323, March 16,
of his issuance of the unfunded check, then there is no equitable reason 2011). If the crime is qualified rape through sexual assault, the Chingcase
to preclude the prosecution of accused. In such a case, the letter of the is not applicable since RA No. 8353 prescribed a grave penalty of
law should be applied to its full extent (Lim vs. People, G.R. No. 190834, reclusion temporal for it (People vs. Bonaagua, G.R. No. 188897, June 6,
November 26, 2014). 2011).

The essence of estafa through issuance of bouncing check is 69. Terrorism - Terrorism is committing a predicate crime
to punish fraud and not to protect the integrity of the check. Damage and which creates a condition of widespread and extraordinary fear and panic
deceit are elements of estafa, and the check is merely the accused's tool among populace in order to coerce the government to give in to an
in committing fraud. In such a case, paying the value of the dishonored unlawful e.g. demand by Al Queda against the US not to interfere with the
check will not free the accused from criminal liability. It will merely satisfy affairs of the Muslim (Section of RA No. 9372). The predicate crimes of
the civil liability (Lim vs. People, supra). terrorism are: Piracy, highway robbery, hijacking, rebellion, coup etat,
murder, kidnapping and serious illegal detention, crimes involving
g. Suspension of payment - Suspension of payment order destruction, arson, unlicensed firearm and explosives, violation of Toxic
issued by SEC before the check was presented for payment is a defense Substances and Hazardous and Nuclear Waste Control Act and violation
in BP Blg. 22. Considering that there was a lawful Order from the SEC, of Atomic Energy Regulatory and Liability Act.
the contract is deemed suspended. Thus, the accused has no obligation
to fund the check and the complainant has no right to present it for 70. Trafficking in person - Accompanying a child and offering
payment (Gidwani vs. People, GR No. 195064, January 15, 2014). her sexual services in exchange for money constitutes child prostitution.
Suspension of payment order issued by SEC after three months from The accused who offered the victim to the one who raped her is not liable
receipt of notice of dishonor is not a defense in BP Blg. 22. The accused for rape as principal indispensable cooperation since bringing the victim to
has the obligation to make good of the check after he received the letter the rapist is not indispensable to the commission of the crime of rape
prior to the issuance of suspension order (Rosario vs. Co, G.R. No. (People vs. Dulay, GR No. 193854, September 24, 2012). If the accused
133608, August 26, 2008). is regularly offering the sexual service of the child in exchange for money,
the crime committed is not anymore child prostitution. Maintaining or hiring
68. RA No. 7610 - The Family Code prohibits the infliction the child as purpose of prostitution constitutes qualified trafficking in
of corporal punishment by teacher. A schoolteacher in employing person because the former took advantage of vulnerability of the latter as
unnecessary violence on her minor student, who even fainted, is liable for a child and as one who need money. Minority is qualifying circumstance
child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, (People vs. Casio, G.R. No. 211465, December 03, 2014; People vs.
October 08, 2014, Bersamin). Accused saw the victim and his Hirang, G.R. No. 223528, January 11, 2017, Bersamin). Recruiting
companions hurting his minor daughters. Angered, accused struck minor- without license a person, child or adult, to work as a prostitute abroad
victim at the back with his hand and slapped his face. Since the accused constitutes the crime of trafficking in person and illegal recruitment.
committed the act at the spur of the moment, they are perpetrated without Syndicate is qualifying circumstance in both crimes. Even if the accused is
intent to debase his "intrinsic worth and dignity" as a human being, or to less than three, but the allegation and evidence shows that there are at
humiliate or embarrass him. Without such intent, the crime committed is least three traffickers and recruiters, syndicated can be appreciated as
not child abuse under RA 7610 but merely slight physical injuries qualifying circumstance (People vs. Lalli, G.R. No. 195419, October 12,
(Bongalon vs. People, G.R. No. 169533, March 20, 2013, Bersamin). 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012).

a. Sexual abuse - Having sexual intercourse or lascivious 71. Illegal recruitment - An employee may be held liable with
conduct with a child constitutes child prostitution if committed for money, his employer, if the former actively and consciously participated in illegal
profit, or any other consideration (People vs. Jalosjos, G.R. Nos. 132875- recruitment. The employee cannot escape liability by claiming that she
76, November 16, 2001); or sexual abuse is committed under coercion or was not aware that before working for her employer in the recruitment
influence of any adult, syndicate or group. In child prostitution, the victim is agency, she should first be registered with the POEA. Illegal recruitment in
called child exploited in prostitution while in sexual abuse the victim is large scale is malum prohibitum, not malum in se. Good faith is not a
called child subjected to other abuse (Section 5 of RA No 7610). Coercion defense (People vs. Valenciano, G.R. No. 180926, December 10, 2008).
is either physical or psychological. Taking advantage of ascendency as a
swimming instructor over student is psychological coercion (People vs. 72. RA No. 9165 - Accused were caught by police authorities
Larin, G.R. No. 128777, October, 7 1998). The assurance of love, on board a speedboat carrying shabu. Since it was not proven that the
guarantee that she would not get pregnant by using the "withdrawal drugs came from China or foreign country they were convicted of
method" and the promise of marriage were classified as "psychological possession of dangerous drugs, which is necessarily included in the
coercion" and "influence" within the purview of Section 5 of RA 7610. charge of importation (People vs. Chan Liu, G.R. No. 189272, January 21,
Hence, accused is guilty of sexual abuse (Caballo vs. People, GR No. 2015).
198732, June 10, 2013).
Possession of different kinds of dangerous drugs in a single
If the child is 12 years old and above, and the acts of the occasion constitutes a single offense of possession of dangerous drugs
accused constitute sexual abuse under RA No. 7610 and rape through (David vs. People, G.R. No. 181861, October 17, 2011).
sexual assault or acts of lasciviousness, he shall be prosecuted under RA
No. 7610 since this law prescribed a grave penalty (Dimakuta vs. People, For illegal possession of dangerous drugs, the prosecution
G.R. No. 206513, October 20, 2015). However, if the acts constitute must establish that the accused freely and consciously possessed the
sexual abuse and rape through sexual intercourse, he shall be prosecuted dangerous drug without authority. However, mere possession of
under RPC since this law prescribed a graver penalty. He cannot be dangerous drug constitutes prima facie evidence of knowledge or animus
prosecuted for compound crime of rape and sexual abuse because the possidendi sufficient to convict an accused in the absence of any
latter is punishable under special law. He cannot be prosecuted for both satisfactory explanation (Asiatico vs. People, G.R. No. 195005,
rape and sexual abuse because of the rule on double jeopardy (People v. September 12, 2011).
Matias, G.R. No. 186469, June 13, 2012 and Alberto vs. Hon. Court of
Appeals, G.R. No. 182130, June 19, 2013). a. Use of dangerous drugs - Where residue of dangerous
drugs is found and there is a positive confirmatory test result, the accused
If the child is under 12 years old, and the acts of the accused should be charged with use rather than possession of dangerous drugs.
constitute sexual abuse and rape or acts of lasciviousness, the latter shall This would be in keeping with the intent of the law to rehabilitate first time
be prosecuted penalized as follows: (1) rape through sexual intercourse; offenders of drug use and provide them with an opportunity to recover for
(2) acts of lasciviousness with the penalty of reclusion temporal in its a second chance at life (People vs. Matinez, G.R. No. 191366, December
medium period (Section 5 of RA No. 7610).Prior to RA No. 8353 (Rape 13, 2010).
Law), inserting finger into genital orifice is acts of lasciviousness. Hence,
reclusion temporal in its medium period under RA No. 7610 should be Positive confirmatory test is an element of use of dangerous
imposed. Under RA No. 8353, inserting finger into genital orifice is rape drugs. However, the absence of such test cannot be raised as an issue for
through sexual assault where the penalty is prision mayor. To impose the the first time on appeal (Ambre vs. People, G.R. No. 191532. August 15,
lighter penalty under RPC as amended by RA 8353 is unfair to the victim. 2012).
It is not the intention of RA No. 8353 to disallow the imposition of penalty
under RA No. 7610 if the victim is child subjected to sexual abuse, who

Page 20 of 25
b. Attempted sale - Poseur-buyer showed shabu for sale to (Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005;
poseur buyer. The sale was aborted when the police officers immediately Rivera vs. People, G.R. No. 156577, December 03, 2014).
placed accused under arrest. The crime committed is attempted sale
(People vs. Figueroa, G.R. No. 186141, April 11, 2012). City treasurer, city accountant and city administrator allowed
the release of cash advance in favor of a paymaster despite the fact that
c. Coordination with PDEA - Lack of coordination with the she has previous unliquidated cash advances. They are liable because of
PDEA will not invalidate a buy-bust operation. Such coordination is not an conspiracy of silence or inaction. Public officers omissions to question
indispensable requirement in buy-bust operations (People vs. Mendosa, irregularities indicate a common understanding and concurrence of
G.R. No. 189327, February 29, 2012) sentiments respecting the commission of the offense of causing undue
injury to the government through gross inexcusable negligence. This is
e. Seizure and custody - Although non-compliance with the called conspiracy by silence (Jaca vs. People, G.R. No. 166967, January
prescribed procedural requirements would not automatically render the 28, 2013).
seizure and custody of the contraband invalid, that is true only when there
is a justifiable ground for such non-compliance, and the integrity and b. Inducement by means of money - Under Section 3 (a) of
evidentiary value of the seized items are properly preserved. Any RA No. 3019, a public officer, who persuades, induces or influences
departure from the prescribed procedure must then still be reasonably another public officer to perform an act constituting a violation of rules and
justified, and must further be shown not to have affected the integrity and regulations or an offense in connection with the official duties of the latter,
evidentiary value of the confiscated contraband (People vs. Barte, G.R. shall be punished for corruption. However, the deliberation in the Senate
No. 179749, March 30, 2017, Bersamin). regarding the bill on anti-graft shows that the mode of committing the
crime under Section 3 (a) is persuading, inducing or influencing a public
g. Chain of custody - The following links must be established officer by another public officer to commit an offense or to violate rules
in the chain of custody in a buy-bust situation: first, the seizure and and regulations by means of consideration, reward, payment or
marking, if practicable, of the illegal drug recovered from the accused by remuneration (Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006).
the apprehending officer; second, the turn over of the illegal drug seized
by the apprehending officer to the investigating officer; third, the turn over c. Transaction or contract - Section 3 (b) of RA No. 3019 is
by the investigating officer of the illegal drug to the forensic chemist for limited only to contracts or transactions involving monetary consideration
laboratory examination; and fourth, the turn over and submission of the where the public officer has the authority to intervene under the law.
marked illegal drugs seized from the forensic chemist to the court (People Preliminary investigation is not a contract or transaction within the
vs. Constantino, Jr. GR No. 199689, March 12, 2014). contemplated of Section 3 (b). Hence, requesting or receiving money in
connection with a preliminary investigation is not a violation of this
h. Plea bargaining - Section 23 of RA No. 9165, any person provision (Soriano, Jr. vs. Sandiganbayan, G.R. No. 65952, July 31, 1984;
charged under any crime involving dangerous drugs regardless of the People vs. Sandiganbayan. and Justice Secretary Perez, G.R. No.
imposable penalty shall not be allowed to avail of the provision on plea- 188165, December 11, 2013, Bersamin).
bargaining.
d. SALN - Failure to file SALN as required by law is a violation
73. RA No. 3019 In Giangan vs. People, G.R. No. 169385, of Section 8 of RA No. 6713 and Section 7 of RA No. 3019 (Concerned
August 26, 2015, Bersamin -Giangan as the barangay chairman acted Taxpayer vs. Doblada, A.M. No. P-99-1342, June 8, 2005). Since both
upon the honest and sincere belief that he was then summarily abating laws provide a penalty for failure to file SALN, the offender should only be
the nuisance that a regular user of the obstructed road had just reported prosecuted and punished either under one or the other.
to him. A further indication of the good faith of Giangan was the turning
over of the wooden posts to the police station, manifesting that the 74. Money laundering - Money laundering is committed by
accused were acting within the scope of their authority. Good faith means any person who, knowing that any monetary instrument or property
honest, lawful intent; the condition of acting without knowledge of fraud, represents, involves, or relates to the proceeds of any unlawful activity:(a)
and without intent to assist in a fraudulent or otherwise unlawful transacts said monetary instrument or property;(b) converts, transfers,
scheme. Also, the act complained of was rendered inconsistent with the disposes of, moves, acquires, possesses or uses said monetary
manifest partiality and bad faith that the law punished. He was acquitted of instrument or property;(c) conceals or disguises the true nature, source,
violation of Section 3 (e) of RA No. 3019 because the element of evident location, disposition, movement or ownership of or rights with respect to
bad faith is not present. said monetary instrument or property;(d) attempts or conspires to commit
money laundering offenses referred to in paragraphs (a), (b) or (c);(e)
In People vs. Reyes, G.R. No. 177105-06, August 12, 2010, aids, abets, assists in or counsels the commission of the money
Bersamin, the Court of Appeals (CA) rendered a decision reinstating the laundering offenses referred to in paragraphs (a), (b) or (c) above; and(f)
title of the complainant. Provincial Adjudicator despite knowledge of the performs or fails to perform any act as a result of which he facilitates the
CA decision still rendered his decision in a DARAB Case that completely offense of money laundering referred to in paragraphs (a), (b) or (c)
contradicted the CA decision by invalidating title of the complainant. He above. Money laundering is also committed by any covered person who,
displayed evident bad faith and manifest partiality by his arrogant refusal knowing that a covered or suspicious transaction is required under this Act
to recognize and obey the CA decision causing undue injury to the to be reported to the Anti-Money Laundering Council (AMLC), fails to do
complainant and giving unawaarnted benefits to private individuals in so (Section 4 of RA No. 9160 as amended by RA No. 10365).
violation of Section 3 (e) of RA No. 3019.
Unlawful activity refers to any act or omission or series or
In usurpation of judicial function, the accused, who is not a combination thereof involving or having direct relation to the following: (1)
judge, attempts to perform an act the authority for which the law has piracy, murder, distructive arson, kidnapping for ransom, crimes involving
vested only in a judge. However, the petitioner's task as Provincial dangerous drugs; (2) hijacking, carnapping, fencing, robbery, qualified
Adjudicator when he rendered judgment in a DARAB case to adjudicate theft, and estafa; (3) bribery and corruption of public officers, frauds and
the claims of the opposing parties. As such, he performed a quasi-judicial Illegal exactions, malversation, graft and corruption, and plunder; (4)
function, closely akin to the function of a judge of a court of law. He could forgeries and counterfeiting; and (5) child pornography, photo-video
not be held liable for usurpation of judicial function were. voyeurism, child abuse, crimes involving explosives and unlicensed
firearm, trafficking in person, illegal recruitment, terrorism and conspiracy
a. Arias principle - To apply the Arias rule for purposes of to commit terrorism, and financing of terrorism and; smuggling, and illegal
exonerating an accused or respondent, the following requisites must be gambling.
present: (1) that the public officer in approving the release of public fund
must be relying to a reasonable extent on his subordinates (Jaca vs. 75. Plunder - The elements of plunder are:
People, G.R. No. 166967, January 28, 2013); (2) that the documents
involving the release of funds must be so voluminous so as to preclude First - That the offender is a public officer who acts by himself
him from studying each one carefully (Santillano vs. People, G.R. Nos. or in connivance with members of his family, relatives by affinity or
175045-46, March 03, 2010); (3) that the public officer has no consanguinity, business associates, subordinates or other persons; (Note:
foreknowledge of existing anomaly (Escara vs. People, G.R. No. Senator Pogi can be held liable for plunder even if the principal offender,
164921, July 8, 2005); and that there is not deviation from ordinary who masterminded the plunder of pork barrel, is a private individual, the
procedure in the release of fund, which necessitate further investigation Pork-barrel Queen. What is important is that Senator Pogi in connivance
with Pork-barrel Queen acquired ill-gotten wealth). On the other hand,

Page 21 of 25
Pork-barrel Queen can be held liable for plunder on the basis of predicate crimes were alleged and proven by evidence (1) series of acts
conspiracy. of receiving collections from "jueteng" in the aggregate amount of
P545,291,000.00; and (2) series consisting of two acts of ordering the
Second - That he amassed, accumulated or acquired ill-gotten GSIS and the SSS to purchase shares of stock of Belle Corporation and
wealth through a combination or series of the following overt or criminal collecting or receiving commission from the sales of Belle Shares in the
acts: amount of P189,700,000.00. This pattern of criminal acts indicates an
overall unlawful scheme or conspiracy to amass ill-gotten wealth in the
1. Through misappropriation, conversion, misuse, or amount of more than P50 million. Estrada was convicted of plunder.
malversation of public funds or raids on the public treasury; (Example:
Misuse of funds in the amount P10 million by awarding contract to a close There are two structures of multiple conspiracies, namely:
relative, who is not the lowest bidder; Misuse of funds or fraud disposition wheel or circle conspiracy and chain conpiracy. Under the wheel or circle
of government asset to P100 million by diverting the construction of road conspiracy, there is a single person or group (the "hub") dealing
leading to his farm instead of the poblacion). individually with two or more other persons or groups (the "spokes").
Under the chain conspiracy, usually involving the distribution of narcotics
Can the Senator use the defense in malversation that he is not or other contraband, in which there is successive communication and
responsible for the misuse of his PDAP since it is the duty of the cooperation in much the same way as with legitimate business operations
appropriate implementing agency of the government to check that the between manufacturer and wholesaler, then wholesaler and retailer, and
recipient of the fund is not bogus? No. Assuming that the duty to check then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927,
that the recipient of the Senators PDAP is not bogus belongs to the August 24, 2007). An illustration of wheel conspiracy wherein there is only
appropriate agency of the government, the Senator is still liable since one conspiracy involved was the conspiracy alleged in the information for
malversation can be committed through culpa. plunder filed against former President Estrada and his co-conspirators.
Former President Estrada was the hub while the spokes were all the other
2. By receiving, directly or indirectly, any commission, gift, accused individuals. The rim that enclosed the spokes was the common
share, percentage, kickback or any other form of pecuniary benefits from goal in the overall conspiracy, i.e., the amassing, accumulation and
any person and/or entity in connection with any government contract or acquisition of ill-gotten wealth (GMA vs. People, G.R. No. 220598, July
project or by reason of the office or position of the public officer; (Example: 19, 2016, Bersamin).
Collecting or receiving commission from the sales of Belle Shares in the
amount of P189,700,000.00 which was deposited in the Jose Velarde In case of several individuals are charged with plunder, the law
account and receiving bi-monthly collections from jueteng, a form of requires that there must be a main plunderer and her co-conspirators, who
illegal gamblingin the aggregate amount of P545,291,000.00 of which was may be members of her family, relatives by affinity or consanguinity,
deposited in the Erap Muslim Youth Foundation (People vs. Joseph business associates, subordinates or other persons (GMA vs. People,
Estrada, Criminal Case No. 26558, September 12, 2007). G.R. No. 220598, July 19, 2016, Bersamin). In the Enrile vs. People, G.R.
No. 213455, August 11, 2015, if the allegation is true, the main plunder is
3. By the illegal or fraudulent conveyance or disposition of Senator Enrile. In People vs. Estrada, the main plunderer is the hub or
assets belonging to government (Example: Ordering the GSIS and the President Estrada.
SSS by President Estrada to purchase shares of stock of Belle
Corporation (People vs. Joseph Estrada, Criminal Case No. 26558, If the main plunderer is unidentified, the total amount allegedly
September 12, 2007); acquired by several accused shall be divided for purposes of determining
if the P50 million threshold had been reached. In GMA vs. People, G.R.
4. By obtaining, receiving or accepting directly or indirectly any No. 220598, July 19, 2016, ten persons, where charged of amassing,
shares of stock, equity or any other form of interest or participation accumulating and acquiring ill-gotten wealth aggregating to
including the promise of future employment in any business enterprise or P365,997,915.00 without identifying the main plunderer. As such, each of
undertaking; the 10 accused would account for the aliquot amount of only
P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth,
5. By establishing agricultural, industrial or commercial which is far below the threshold value of ill-gotten wealth required for
monopolies or other combinations and/or implementation of decrees and plunder. In this situation, plunder is not committed.
orders intended to benefit particular persons or special interests; or
If the main plunderer is identified, the total amount acquired by
6. By taking advantage of official position, authority, him and his co-conspirators shall be considered in determining if the P50
relationship, connection or influence to unjustly enrich himself or million threshold had been reached. For example, if GMA was identified
themselves at the expense and to the damage and prejudice of the as a main plunder, her acts and that of the other conspirators in amassing,
Filipino people and the Republic of the Philippines; accumulating and acquiring ill-gotten wealth aggregating to
P365,997,915.00 shall be considered for purposes of determining if the
Note: The word combination means at least two different P50 million threshold had been reached. In this situation, plunder is
predicate crimes; while the term series means at least two predicate committed.
crimes of the same kind (Ejercito vs. Sandiganbayan, G.R. Nos. 157294-
95, November 30, 2006). Thus, a single predicate crime amounting to 50 In Enrile vs. People, G.R. No. 213455, August 11, 2015, it was
million pesos is not plunder. The intention of the lawmakers is that if there stated that in the crime of plunder, the amount of ill-gotten wealth acquired
is only one predicate crime, the offender has to be prosecuted under the by Senator, his assistant, and a private individuals in a conspiracy is
particular crime, which is already covered by existing laws. What is immaterial for as long as the total amount amassed, acquired or
punishable under the law is "acts of plunder", which means that there accumulated by them is at least P50 million.
should be at least, two or more, predicate crimes (See deliberation of the
Bicameral Committee on Justice, May 7, 1991). 67. Wire-tapping - MMDA officer is extorting money from a
driver of a vehicle, who committed trafficking violation along Edsa. The
Third - That the aggregate amount or total value of the ill- officer threatened the driver that he will confiscate her drivers license
gotten wealth amassed, accumulated or acquired is at least unless she will give him P500.00. However, MMDA officer is not aware
P50,000,000.00 (Joseph Ejercito Estrada vs. Sandiganbayan, G.R. No. that his act of extorting money is being video-recorder by a passenger.
148560, November 19, 2001). The passenger violated the Anti-Wire Tapping Law. The recording of
private conversations without the consent of the parties contravenes the
The damages suffered by the government in diverting the road provisions of RA No. 4200. The law covers even those recorded by
from the poblacion to the farm of the accused shall not be considered in persons privy to the private communications. The law is applicable even if
determining if plunder is committed. What is important is the amount of ill- the conversation being recorder pertains to criminal extortion (Mamba vs.
gotten wealth acquired by the public officer and not the amount of damage Garcia, A.M. No. MTJ-96-1110, June 25, 2001). Passenger is criminally
suffered by the government. liable for violating law. On the other hand, MMDA officer is liable for
attempted robbery. However, in proving attempted robbery, the driver
In People vs. Joseph Estrada, Criminal Case No. 26558, cannot use the recording since the same is not admissible in evidence.
September 12, 2007 -One of the predicate crimes alleged in the
information is misappropriation of the excise tax share of Ilocos Sur. This 66. Hazing - Prior to RA No. 8049, the consent of the victim to
was not proven beyond reasonable doubt. However, the following hazing and lack of intent to kill will negate dolo. Hence, the crime

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committed only reckless imprudence resulting in homicide (Villareal vs. Computer system refers to any device or group of
People, G.R. No. 151258, February 1, 2012). Congress instead of interconnected or related devices, one or more of which, pursuant to a
amending RPC created a special law (RA No. 8049) to make program, performs automated processing of data. It covers any type of
hazing malum prohibitum, where consent of the victim and lack of intent to device with data processing capabilities including, but not limited to,
kill is not a defense and the mitigating circumstance of praeter intentionem computers and mobile phones. The device consisting of hardware and
shall not be appreciated (Dungo vs. People, G.R. No. 209464, July 01, software may include input, output and storage components which may
2015). stand alone or be connected in a network or other similar devices. It also
includes computer data storage devices or media.
The elements of the crime of hazing are: (1) That there is an
initiation rite or practice as a prerequisite for admission into membership in Offenses against the confidentiality, integrity and availability of
a fraternity, sorority or organization; (2) That there must be a recruit, computer data and systems are:
neophyte or applicant of the fraternity, sorority or organization; and (3)
That the recruit, neophyte or applicant is placed in some embarrassing or
humiliating situations such as forcing him to do menial, silly, foolish and a. Illegal Access Illegal access refer is committed by any
other similar tasks or activities or otherwise subjecting him to physical or person, who shall access to the whole or any part of a computer system
psychological suffering or injury (Dungo vs. People, supra; People vs. without right. Ethical hackers are professionals who employ tools and
Bayabos, G.R. No. 171222, February 18, 2015). Organization includes techniques used by criminal hackers but would neither damage the target
companies, PNP, AFP (People vs. Bayabos). Even the president, systems nor steal information. Since the ethical hacker does his job with
manager, director or other responsible officer of a corporation engaged in prior permission from the client, such permission would insulate him from
hazing as a requirement for employment are covered by the law (Dungo the coverage cybercrime law on illegal access (Disini vs. Secretary of
vs. People, supra). Justice, G.R. No. 203335, February 11, 2014).

Failure to allege that the physical or psychological harm were b. Illegal Interception Illegal interception is committed by
employed as a prerequisite for admission or entry into the organization any person, who shall intercept by technical means without right of any
would prevent the successful prosecution of the criminal responsibility of non-public transmission of computer data to, from, or within a computer
the accused, either as principal or as accomplice, for the crime of hazing. system including electromagnetic emissions from a computer system
Plain reference to a technical term in this case, hazing is insufficient carrying such computer data.
and incomplete, as it is but a characterization of the acts allegedly
committed and thus a mere conclusion of law (People vs. Bayabos). c. Data Interference Data interference is committed by any
person, who shall intentionally, or recklessly alter, damage, delete or
In hazing, criminal responsibility is based on (1) actual deteriorate computer data, electronic document, or electronic data
participation in inflicting physical harm and inducement, (2) presumed message, without right, including the introduction or transmission of
participation (of those who are present during the hazing), (3) the viruses. This is considered as cyber vandalism.
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 d. System Interference System interference is committed by
commission, and school authorities). any person, who shall intentionally alter or recklessly hinder or interfere
with the functioning of a computer or computer network by inputting,
In the case of school authorities and faculty members who transmitting, damaging, deleting, deteriorating, altering or suppressing
have had no direct participation in the act, they may nonetheless be computer data or program, electronic document, or electronic data
charged as accomplices if it is shown that (1) hazing, as established by message, without right or authority, including the introduction or
the above elements, occurred; (2) the accused are school authorities or transmission of viruses.
faculty members; and (3) they consented to or failed to take preventive
action against hazing in spite actual knowledge thereof (People vs. e. Misuse of Devices Misuse of devise is committed by any
Bayabos). person, who shall use, produce, sell, procure, import, distribute, or
otherwise make available, or possession with intent to use, without right
The corresponding responsibilities of the principal, accomplice, any of the following: (1) a device, including a computer program, designed
and accessory are distinct from each other. As long as the commission of or adapted primarily for the purpose of committing any cybercrime; or (2) a
the offense (hazing) can be duly established in evidence, the computer password, access code, or similar data by which the whole or
determination of the liability of the accomplice or accessory can proceed any part of a computer system is capable of being accessed with intent
independently of that of the principal (People vs. Bayabos). that it be used for the purpose of committing any cybercrime;

The accused claim that the information avers a criminal charge


f. Cyber-squatting Cyber-squatting is committed by any
of hazing by actual participation, but the only offense proved during the
person, who shall acquire a domain name over the internet in bad faith to
trial was hazing by inducement. The information alleged that the accused
profit, mislead, destroy reputation, and deprive others from registering the
during a planned initiation rite and being then officers of APO fraternity
same, if such a domain name is: (a) similar, identical, or confusingly
used personal violence upon a neophyte resulting to his death. The
similar to an existing trademark registered with the appropriate
"planned initiation rite" as stated in the information included the act of
government agency at the time of the domain name registration; (b)
inducing victim to attend it. Accused not only induced victim to be present
identical or in any way similar with the name of a person other than the
at the resort, but they actually brought him there. The hazing would not
registrant, in case of a personal name; and (c) acquired without right or
have been accomplished were it not for the acts of the petitioners that
with intellectual property interests in it.
induced the victim to be present (Dungo vs. People, supra).

67. Cybercrime - The following constitute cybercrime offenses: 69. Computer-related offense - The following are computer-
(1) Offenses against the confidentiality, integrity and availability of related offenses:
computer data and systems; (2) Computer-related offenses; and (3)
content-related offenses (cyber libel, cybersex and cyber child a. Computer-related forgery - Computer-related forgery is
pornography). committed by any person, who shall input, alter, or delete any computer
data without right resulting in inauthentic data with the intent that it be
68. Confidentiality of computer system - Offenses against considered or acted upon for legal purposes as if it were authentic,
the confidentiality, integrity and availability of computer data and systems regardless whether or not the data is directly readable and intelligible; or
are cybercrime under Section 4 of RA No. 10175. who shall knowingly use computer data which is the product of computer-
related forgery for the purpose of perpetuating a fraudulent or dishonest
design.
Computer data refers to any representation of facts,
information, or concepts in a form suitable for processing in a computer
system including a program suitable to cause a computer system to b. Computer-related Fraud - Computer-related fraud is
perform a function and includes electronic documents and/or electronic committed by any person, who without authority shall input, alter, or delete
data messages whether stored in local computer systems or online. computer data or program or interfere in the functioning of a computer

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system with fraudulent intent causing damage thereby. The penalty is to include cyber pornography by requiring a child to show her private parts
lower if no damage has yet been caused. to a client through the internet. If child pornography is committed through
a computer system, the crime committed is cyber child pornography under
c. Computer-related identity theft - Computer-related identity RA No. 10175 and the penalty is one degree higher.
theft is committed by any person, who shall intentionally acquire, use,
misuse, transfer, posses, alter or delete identifying information belonging 72. SPAM - Unsolicited commercial communications is
to another, whether natural or juridical, without right. The penalty is lower committed by any person, who shall transmit commercial electronic
if no damage has yet been caused. communication with the use of computer system which seeks to advertise,
sell, or offer for sale products and services. Transmission of unsolicited
Using the name of another person and his pictures in opening commercial communications is also known as "spam." In Disini case, the
a facebook account without authority constitutes cybercrime offense. provision of RA No. 10175 prohibiting spam is declared unconstitutional. It
was held that to prohibit the transmission of unsolicited ads would deny a
person the right to read his emails, even unsolicited commercial ads
71. Content-related offenses - Content-related offenses addressed to him. The State cannot rob him of this right without violating
includes cyber libel, cybersex and cyber child pornography. A prosecution the constitutionally guaranteed freedom of expression. Unsolicited
for cybercrime offenses shall be without prejudice to any liability for advertisements are legitimate forms of expression.
violation of any provision of the Revised Penal Code or special laws
(Section 7). Despite of Section 7, the offender cannot be prosecuted for
cyber libel or cyber child pornography under RA No. 10175 in addition to 73. Other cybercrime offense - Other cybercrime offense is
libel under RPC or child pornography under RA No. 9775 since this will also committed by any person who shall wilfully abet or aid in the
offend the constitutional rule on double jeopardy (Disini vs. Secretary of commission of any of the cybercrime offenses or any person who wilfully
Justice, G.R. No. 203335, February 11, 2014). attempts to commit any of the cybercrime offenses (Section 5).

a. Cyber libel Libel is not a constitutionally protected speech The provision on aiding or abetting cybercrime in relation to
and that the government has an obligation to protect private individuals cyber libel, child pornography and unsolicited commercial communication
from defamation. Indeed, cyber libel is actually not a new crime since was declared unconstitutional in the Disini case. The terms "aiding or
Article 353, in relation to Article 355 of the Revised Penal Code, already abetting" constitute broad sweep that generates chilling effect on those
punishes it. Online defamation constitutes similar means for committing who express themselves through cyberspace posts, comments, and other
libel (Disini vs. Secretary of Justice, G.R. No. 20335, February 18. 2014). messages. Hence, this provision that punishes "aiding or abetting" libel on
the cyberspace is a nullity since it encroaches upon freedom of speech on
Cyber libel is an unlawful or prohibited act of libel as defined in grounds of overbreadth or vagueness of the statute.
Article 355 of RPC committed through a computer system or any other
similar means which may be devised in the future. In case libel is
A blogger who originally posted a libellous or child
committed through use of information and communications technologies,
the penalty for libel under Article 355 of RPC shall be increased one pornographic message is liable for cybercrime. But netizens, who merely
degree higher pursuant to Section 6 of RA No. 10175. reacted to the defamatory or child pornographic message on the
Facebook by clicking button for "Like," "Comment" or "Share" or on a
The place where libelous article was accessed by the offended Tweeter account by retweeting it, are not liable for aiding or abetting
party in the internet is not equivalent to the place where the libelous article cybercrime.
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 But the provision on aiding or abetting cybercrime in relation to
indiscriminate laying of the venue in libel cases in distant, isolated or far- other cybercrimes such as illegal access, illegal interception, data
flung areas, to harass an accused. At any rate, Article 360 still allow interference etc. is declared constitutional.
offended party to file the civil or criminal complaint for internet libel in their
respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, 74. Qualifying circumstance of use of information
G.R. No. 184800, May 5, 2010). technology - Use of information and communications technologies in
committing felony or offense under special law is a qualifying
b. Cybersex Cybersex under RA No. 10175 is committed by circumstance under Section 6 of RA No. 10175.
any person, who shall wilfully engage, maintain, control, or operate,
directly or indirectly, any lascivious exhibition of sexual organs or sexual Under Section 6 of RA No. 10175, the penalty for crimes
activity, with the aid of a computer system, for favor or consideration. punishable under special laws committed through and with the use of
information and communication technologies shall be one degree higher
The element of "engaging in a business" is necessary to than that provided the law. However, this provision requires the
constitute the illegal cybersex. The law actually seeks to punish cyber application of the rules on graduation of penalties under the Revised
prostitution, white slave trade, and pornography for favor and Penal Code. Hence, Section 6 finds application only if special law involved
consideration. This includes interactive prostitution and pornography, i.e.,
by webcam. The deliberations of the Bicameral Committee of Congress has adopted the technical nomenclature of the penalties of Revised Penal
show a lack of intent to penalize a "private obscene showing between two Code.
private persons although. (Disini vs. Secretary of Justice, G.R. No.
203335, February 11, 2014).
(Warning: This is the intellectual property of Judge Campanilla. Copying any parts
of this work in writing materials or book for publication without proper attribution
If the commission of cybersex involves lascivious exhibition of is prohibited by law.)
sexual organs or sexual activity of a child, the offender may be prosecuted
-----------------------------------------------------------------------------------------------------------------
for child pornography under RA No. 9775 qualified by the circumstance of
using computer system under RA No. 10175. However, the offender
*No part of this material may be reproduced in any manner or form without
cannot be prosecuted for both cybersex and qualified (or cyber) child
permission by the Lecturer and Magnificus Juris Reviews and Seminars, Inc.
pornography because of the rule on double jeopardy (Disini vs. Secretary
(Magnificus).
of Justice, G.R. No. 203335, February 11, 2014).

If the commission of cybersex involves the maintenance of


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

c. Cyber child pornography - In RA No. 9208 child


pornography is committed by electronic, mechanical, digital, optical,
magnetic or any other means, responsible persons are liable for child
pornography under RA No. 9775. RA No. 9775 is comprehensive enough
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