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First Proposal on the Revision of Rules of

Criminal Procedure
Rule 110
SECTION 1. Institution of criminal actions.—Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with
the proper officer for the purpose of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit
Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed
with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless
otherwise provided in special laws.
PROPOSED REVISED VERSION:
SECTION 1. Institution of criminal actions.—Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with
the proper officer for the purpose of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit
Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed
with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running of the period of prescription of the offense punishable under
special law or felony charged unless otherwise provided by law.
EXPLANATORYNOTE:
The last paragraph ofthe original version of Section 1, Rule 110 of the Rules of Criminal Procedurecontains two parts. The first
part “The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged” is an
adoption of the principle in Francisco vs. Court of Appeals, 122 SCRA 538, which provides that the filling of the complaint
with the fiscal’s office or court interrupts the period of prescription of the offense charged. The second part “unless otherwise
provided in special laws” is an adoption of the ruling in Zaldivia vs. Reyes, 211 SCRA 538, which provides an exception to the
general rule, and that is, prescriptive period of crime punishable under special laws and municipal ordinance shall only be
interrupted upon filing of compliant or information in court.
However, the Zaldivia rule has been abandoned by the SupremeCourt in SEC vs. Interport Resources Corporation, G.R. No.
135808, October 6, 2008, En Banc, Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008and People vs.
Pangilinan, G.R. No. 152662, June 13, 2012, under which cases fillingof compliant in the fiscal office or complaint or
information in courtinterrupts the prescriptive period of crime, whether it is punishable under the Revised Penal Code or special
laws.
The first part of the proposed revision “The institution of the criminal action shall interrupt the running of the period of
prescription of the offense punishable under special law or felony charged” reflects the latest jurisprudence that eliminates the
distinction between felony under the Revised Penal Code and offense under special laws in terms of interruption of prescription.
The last part “unless otherwise provided by law” is a recognition of the power of Congress to provide through legislation
special rule on interruption of prescription.

Second Proposal of the Revision of the


Rules of Criminal Procedure
ORIGINAL VERSION
Rule 110
SEC. 3. Complaint defined.—A complaint is a sworn written statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer charged with the enforcement of the law violated.
PROPOSED REVISED VERSION:
SEC. 3. Complaint defined.—A complaint is a sworn written statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer charged with the enforcement of the law violated and filed with the
court.
EXPLANATORY NOTE
There are two kinds of complaint, to wit: complaint filed with the court and one filed with the office of the fiscal.
Complaint filed with the fiscal prior to judicial action may be filed by any person (Salazar vs. People, G.R. No. 149472,
October 15, 2002). According Justice Florenz Regalado, the complaint (which must be subscribed by the offended party, any
peace officer, or other public officer charged with the enforcement of the law violated) referred o in Rule 110 contemplates one
filed in court to commence a criminal action in those cases where a complaint of the offended party is required by law.
The proposed revised version of the provision will clearly show that the rule on subscription of complaint by offended
party or peace officer does not apply to complaint to be filed with the fiscal for preliminary investigation.

Third Proposal on the Revision of the Rules


on Criminal Procedure
ORIGINAL VERSION
Rule 114
SEC. 9. Amount of bail; guidelines.—The judge who issued the warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following factors:(a) Financial ability of the accused to give bail; (b) Nature
and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and
health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h)
Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases
where the accused is on bail.
Excessive bail shall not be required.
PROPOSED REVISED VERSION
SEC. 9. Amount of bail; guidelines.—The judge who issued the warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following factors:(a) Financial ability of the accused to give bail; (b) Nature
and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and
health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h)
Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases
where the accused is on bail.
Excessive bail shall not be required.
For purposes of recommending the amount of bail, theprivileged mitigating circumstance of minority shall be
considered.
EXPLANATORY NOTE
Section34 of RA No. 9344, otherwise known as “Juvenile Justice and Welfare Act of 2006"provides:

“Section34. Bail. - For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall
be considered.”

Since this provision is procedural in character, it should be incorporated in the Rules of Criminal Procedure.

Fifth proposed Revision on Rules of


Criminal Procedure
ORIGINAL VERSION
RULE 112
SEC. 6. When appeal, to be taken.—An appeal must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a motion for
new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his
counsel at which time the balance of the period begins to run.
PROPOSED VERSION
SEC. 6. When appeal, to be taken.—An appeal must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. If motion for new trial or reconsideration is filed, the accused has a fresh period of
15 days within which to appeal, counted from receipt of the order denying a motion for a new trial or motion for
reconsideration.
EXPLANATORY NOTE
If the motion for reconsideration or new trial in a criminal case is denied by the trial court, the accused has a fresh period of 15
days to file notice of appeal. In Yu vs. Samson-Tatad, G.R. No. 170979, February 9, 2011,the Supreme Court applied
the Neypes principle or the “fresh period rule” to the period of appeal in criminal cases. Hence, the “balance of period rule”
in Section 6 of Rule 122 of the Revised Rules of Criminal Procedure is not any more controlling. The proposed version adopts
the Neypes rule,

Sixth Proposal on the Rules of Criminal


Procedure
ORIGINAL VERSION
RULE 117

SEC. 8. Provisional dismissal.—A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six(6) years or a fine of any amount, or both,
shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses
punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived.

PROPOSED REVISED VERSION

SEC. 8. Provisional dismissal.—A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party of the proceeding when the motion for provisional dismissal is made. Provisional dismissal
can also be made upon motion of the accused and offended party pursuant to their compromise agreement entered into during
the mediation proceeding in the Philippine Mediation Center or Judicial Dispute Resolution proceeding.

The provisional dismissal of offenses punishable by imprisonment not exceeding six(6) years or a fine of any amount, or both,
shall become permanent after service of the order of dismissal on the public prosecutor who has control of the
prosecution without the criminal case having been revived. With respect to offenses punishable by imprisonment of more than
six (6) years, their provisional dismissal shall become permanent two (2) years after service of the order without the case having
been revived.

A provisionally dismissed case may be revived through by filing a motion in court which issued the order of provisional
dismissal, re-filing of the information or filling a new Information for the same offense or an offense necessarily included
therein.

EXPLANATORY NOTE
Because of the phrase “with notice to the offended party” in the first paragraph of the original version Section 8, Rule 117, the
Supreme Court People vs. Lacson, G.R. No. 149453, April 1, 2003 ruled that the application of the time bar rule under this
provision requires that the offended party is notified of the motion for a provisional dismissal of the case. It submitted that this
rule will just delay the disposition of the case even if circumstances justify the immediate provisional dismissal thereof. Under
the original version, if the offended party fails to appear to testify at a scheduled hearing for the third time and the return of the
notice sent to him shows that he is not anymore residing at the given address, the court cannot immediately order a provisional
dismissal upon motion of the accused since the offended party must be notified of such motion. Under the proposed revision, if
notice is sent to the address of record of the offended party, he is considered notified of the proceeding when the motion for
provisional dismissal is made by the accused on the ground of failure to prosecute. Hence, provisional dismissal can be ordered
on that day.

In mediation or JDR proceeding, the offended party would not ordinarily enter into a settlement of the case without monetary
condition attached to it and the accused would not ordinarily agree to pay him unless the criminal case will be withdrawn. If the
settlement of the civil aspect is on instalment basis, the offended party will usually agree to withdraw the case upon full
payment of the monetary obligations assumed by the accused to settle the matter. However, if the parties agreed to a provisional
dismissal pending settlement of the case, the court may not approve the same since this is no procedural rule that allows it. The
proposed revision, which permits provisional dismissal based on compromise agreement, is intended to support the purpose of
mediation and JDR proceedings, and that is, the settlement of cases through extrajudicial process.
Although the second paragraph of the original rule of Section 8, Rule 117 states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been revived, the Supreme Court in People vs. Lacson,
supra, ruled that the provision should be construed to mean that the order of dismissal shall become permanent one year after
service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having
been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order
of dismissal.
The proposed revision adopts the Lacson rule on service of order of dismissal to the public prosecutor.
The original version of the rule fails to provide the manner on how to revive the provisionally dismissed case within the
required period. In the case of Lacson, the Supreme Court ruled that the case may be revived by the State within the time-bar
either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily
included therein. The proposed revision adopts the modes of revival mentioned in the Lacson case and provides an additional
manner of reviving the case, and that is, by filing a motion in court which issued the order of provisional dismissal.

Seventh proposal on the Revision of the


Rules of Criminal Procedure
ORIGINAL VERSION
RULE 110
Section 15. Place where action is to be instituted. —
(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the
offense was committed or where any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the
criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle
passed during such its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried
in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to
the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by
the court where the criminal action is first filed.
PROPOSED REVISED VERSION
Section 15. Place where action is to be instituted. —
(a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the
offense was committed or where any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the
criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle
passed during such its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried
in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage.
(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by
the court where the criminal action is first filed.

EXPLANATORY NOTE
The original version of paragraph “c” of Section, Rule 110 of the Rules of Criminal Procedure provides rule on venue
involving crime committed in a vessel, which is “subject to the generally accepted principles of international law.” The rule
on venue is a domestic concern and the international law cannot dictates to us which court with territorial jurisdiction should
take cognizance over a crime committed aboard a vessel. That is why proposed revision deletes the phrase “subject to the
generally accepted principles of international law” in the said provision. What is subject to international law is not the rule on
venue but the territorial principle under Article 2 of the Revised Penal Code. The rule on venue should not be confused with the
principle of territoriality. The principle of territoriality provides that Philippines has jurisdiction over crime committed within its
territory subject to international law such as the Convention on the Law of the Sea that recognizes the jurisdiction of the flag
state over crimes committed board a foreign merchant vessel travelling in the territorial water of the Philippines. On the other
hand, the rule of venue identifies the particular court of territorial jurisdiction (such as Regional Trial Court of Manila, Regional
Trial Court of Cebu, etc.), which can take cognizance over a crime. The application of rule of venue presupposes that the
Philippines has jurisdiction crime in accordance with territoriality principle, extra-territoriality principle or international law.

Eight proposal on the Revision of the Rules


of Criminal Procedure
ORIGINAL VERSION
Rule 112
SEC. 7. When accused lawfully arrested without warrant.—When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may befiled by the offended party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days
from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5)
days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his
defense as provided in this Rule.
PROPOSED REVISED VERSION
SEC. 7. When accused lawfully arrested without warrant.—When a person is lawfully arrested without a warrant involving an
offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may befiled by the offended party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of his right not to be detained beyond the period stated in Article 125 of the Revised Penal
Code, as amended for fifteen (15) days. Notwithstanding the waiver, he may apply for bail and the investigation must be
terminated within fifteen (15)days from execution of waiver.

Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial
investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null
and void and of no effect.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5)
days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his
defense as provided in this Rule.
When a person is lawfully arrested without a warrant involving an offense which does not require a preliminary investigation,
inquest is not required in filing of complaint or information in court, and motion for preliminary investigation after the filing
thereof in court is prohibited.
EXPLANATORY NOTE
The phrase “a waiver of the provisions of Article125 of the Revised Penal Code, as amended” in the original version of Section
7, Rule 112 of the Rules of Criminal Procedure is replaced by the phrase “a waiver of his right not to be detained beyond the
periods stated in Article 125 of the Revised Penal Code, as amended” to make the rule easily understandable.
The waiver of right not to be detained under the proposed version is confined to fifteen-day period. This is a message to
the public prosecutor that the fifteen-day period to resolve preliminary investigation conducted because of the waiver is
mandatory. Since the waiver is only fifteen (15) days, the detainee should be released if public prosecutor fails to resolve the
case within the said period.
Under the original version of said provision, waiver of provision under Article 125 of the Penal Code must be made “in the
presence of his counsel.” However, RA No. 7438, otherwise known as the Custodial Investigation Law, provides as an
additional requirement that the waiver must be in writing in. Section 2 of this law states:
Section 2. x x x (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code,
or under custodial investigation, shall be in writing and signed by such person in the presence ofhis counsel; otherwise the
waiver shall be null and void and of no effect.
The proposed version adopts the requirements on waiver under RA No. 7438.
The original version fails to provide a regulation in case where the suspect is lawfully arrested without a warrant
involving an offense which does not require a preliminary investigation. Although it is a basis rule that inquest proceeding and
motion for preliminary investigation under Section 7, Rule 112 are not applicable if the crime of which the detainee was
arrested does not require preliminary investigation, it would be better to expressly state this rule. This is the basis of the last
paragraph of the proposed revised version of Section 7, Rule112.

9th proposal on the Revision of the Rules of


Criminal Procedure
ORIGINAL VERSION
RULE 116
SEC. 2. Plea of guilty to a lesser offense.—At arraignment, the accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.
PROPOSED REVISED VERSION
SEC. 2. Plea of guilty to a lesser offense.—At arraignment, the accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.
Any person charged under any provision of RA No. 9165, otherwise known as Comprehensive Dangerous Drugs of 2002
regardless of the imposable penalty shall not be allowed to avail of the benefit of plea-bargaining under this provision.

EXPLANATORY NOTE

The proposed version incorporates the rule against plea-bargaining under Section 23 of RA No. 9165, which provides:
“Section 23. Plea-Bargaining Provision. – Any person charged under any provision of this Act regardless of the imposable
penalty shall not be allowed to avail of the provision on plea-bargaining.”
10th proposal on the Revision of the Rules
of Criminal Procedur e

ORIGINAL VERSION
RULE 119
SEC. 23. Demurrer to evidence.—After the prosecution rests its case,the court may dismiss the action on the ground of
insufficiency of evidence (1)on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without leave of court
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.(15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-
extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before judgment, (n)
PROPOSED REVISED VERSION
SEC. 23. Demurrer to evidence.—After the prosecution rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1)on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer
to evidence filed by the accused with or without leave of court
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.(15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-
extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from
notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The court, in the exercise of its sound discretion, may require or allow the prosecution to present additional evidence at its own
initiative or upon a motion after a demurrerto evidence is filed.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by
appeal or by certiorari before judgment.
EXPLANATORY NOTE
The fifth paragraph of the proposed revised Section 23, Rule 23 of the Rules of Criminal Procedure is an incorporation of the
principle in the case of In People vs. The Hon. Sandiganbayan and Imelda Marcos, G.R. Nos. 153304-05, February 7, 2012,
where the Supreme Court ruled:
“The court, in the exercise of its sound discretion, may require or allow the prosecution to present additional evidence (at its
own initiative or upon a motion) after a demurrer to evidence is filed. This exercise, however, must be for good reasons and in
the paramount interest of justice. The court may require the presentation of further evidence (1) if its action on the demurrer to
evidence would patently result in the denial of due process; (2) if it is newly discovered, (3) if it was omitted through
inadvertence or mistake, or (4) if it is intended to correct the evidence previously offered.”

11th proposal on the Rules of Criminal


Procedure
18 January 2014 at 15:25
ORIGINAL VERSION
Rule 112
SEC. 6. When warrant of arrest may issue.—(a) By the Regional Trial Court .—Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by
the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of
this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence
within five(5) days from notice and the issue must be resolved by the court within thirty (30)days from the filing of the
complaint or information.
(b) By the Municipal Trial Court.—When required pursuant to the second paragraph of section 1 of this Rule, the preliminary
investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When
conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph
(a)of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3
of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the
conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath
of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.
(c) When warrant of arrest not necessary.—A warrant of arrest shall not issue if the accused is already under detention pursuant
to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed
in the exercise of its original jurisdiction. (6a)

PROPOSED REVISED VERSION


Rule 112
SEC. 6. When warrant of arrest may issue.—(a) By the Regional Trial Court .—Within ten (10) days from the filing of the
complaint or information, the judge of the Regional Trial Court shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If
he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested and
the complaint or information was filed after inquest proceeding pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(b) By the first level court— The judge of the inferior court should follow the procedure for the issuance of a warrant of arrest
under paragraph (a) of this section. However, if the judge finds that the case is covered by the rules on summary procedure, he
shall not issue warrant of arrest, or shall issue an order releasing the accused, who was lawfully arrested without warrant.
(c) Offense punishable by fine only —A warrant of arrest shall not issue for an offense penalized by fine only. The court shall
then proceed in the exercise of its original jurisdiction.
(d) Motion for judicial determination of probable cause – Filing of motion for judicial determination of probable cause does not
suspend the ten (10) period, within which the court should issue warrant of arrest or commitment order or dismiss the case
pursuant to paragraph “a “or “b” of this Section. Hearing or a de novo trial is not required in determining probable cause for the
issuance of warrants of arrests unless the court in the exercise of sound discretion decides to conduct it when extraordinary
circumstances warrant it.
However, the filing of motion for judicial determination of probable cause is prohibited when the case is covered by the Rules
on Summary Procedure or after the court has issued a warrant of arrest or commitment order.
EXPLANATORY NOTE
Under the original version of Section 6, Rule 112 of the Rules of Civil Procedure, the judge of the Regional Trial Court shall
issue commitment order upon finding of probable cause “if the accused has already been arrested pursuant to a warrant issued
by the judge(of first level court) who conducted the preliminary investigation.” This is obsolete since judge of first level court
cannot anymore conduct preliminary investigation. A.M. No. 05-8-26-SC, which took effect on 3 October2005, has removed
the conduct of preliminary investigation from judges of the first level courts. That is why the proposed revised version merely
maintains the duty of the judge to issue commitment order upon finding of probable cause if the accused is lawfully arrested and
he was charged after an inquest proceeding.
Second paragraph of the original version of the said provision governs the manner of issuing warrant of arrested by the
courts of first level if preliminary investigation is required. The rule is divided into two parts, the first of which is where
preliminary investigation is conducted by the judge while the other by the prosecutor. This rule is already obsolete since judge
cannot anymore conduct preliminary investigation. Moreover, one of the objectives of the group tasked to recommend the
revision of the Rules of Criminal Procedure is to simply the rule. That is why it is being highly considered that cases should be
subject to preliminary investigation where the penalty prescribed for the crime involved is not more than six (6) years. With this
rule, there is no need to distinguish preliminary investigation conducted by judge of first level court or by the prosecutor for
purposes of determining what procedure should be followed in issuing warrant of arrest.
To provide a uniform rule, the procedures under the proposed revision to be followed in issuing warrant of arrest by the
Regional Trial Court or inferior court should be the same except when the case is covered by the Rules on Summary Procedure.
In cases covered by the Rules on Summary Procedure, the court is not allowed to issue warrant of arrest upon the filing of
informational though it can issue a bench warrant if the accused failed to appear in court when required to do so. Thus, an
accused prior to conviction will not be arrested or detained unless he fails to appear when required by the court or
therules. However, if the accused was lawfully arrested, and he cannot afford to post bail, he will remain under detention
despite the case is covered by the Rules on Summary Procedure. This is unfair especially if the accused voluntarily surrender in
recognition of the authority of the apprehending officer. This would create an absurd situation where an accused, who refuses to
recognize the authorities by evading arrest, will be reward by not placing him under detention prior to conviction while one,
who recognizes the authorities by voluntarily surrendering to them, will be penalized by not releasing him until he posted bail in
cash or on recognizance.
Under the proposed revised version of the rules, the court upon findings that the case is covered by the Rules on
Summary Procedure should order the release of the accused, who was lawfully arrested. This rule will place the accused, who
was arrested, and one who is not on equal footings.
Under the third paragraph of the original version of the Section 6, Rule 112, warrant of arrest shall not issue if the
accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b)of
this section, or if the complaint or information was filed pursuant to section 7 of this Rule. This rule should be deleted since it is
already covered by the rules under first and second paragraphs of Section 6, Rule 112,where the judge of the Regional Trial
Court or inferior court upon finding of probable cause shall issue commitment order instead of warrant of arrest if the accused is
lawfully detained. However, the proposed revision retains the non-issuance of warrant for offense for which the penalty
prescribed is fine only.
Filing of motions for judicial determination of probable court, which is now being availed of by law practitioners to
protect the interest of their clients, maybe a cause of delay of the disposition of cases if there are no rules that will regulates it.
The proposed revision rules seek to regulate it.
Under the proposed rules, the judge may in its discretion conduct a de novo trial when determining probable cause for the
issuance of warrants of arrests. This is in conformity with the rule that while the judge is not required, when determining
probable cause for the issuance of warrants of arrests, to conduct a de novo hearing, he could hold a hearing when
circumstances require. In People vs. Yadao, G.R. Nos. 162144-54, November 13,2012, the Supreme Court ruled:
“The general rule of course is that the judge is not required, when determining probable cause for the issuance of warrants of
arrests, to conducta de novo hearing. The judge only needs to personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial evidence.
But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits the inconsistent statements
that they earlier submitted to the Office of the Ombudsman. Consequently, it was not unreasonable for Judge Yadao, for the
purpose of determining probable cause based on those affidavits, to hold a hearing and examine the inconsistent statements and
related documents that the witnesses themselves brought up and were part of the records. Besides ,she received no new
evidence from the respondents.”
If the case is covered by the Rules on Summary Procedure, the judge of the first level court has no duty to determining
probable cause for purpose of issuing warrant of arrest. Hence, motion for judicial determination of probable cause should be
considered as a prohibited motion. Allowing this motion will defeat the purpose of the Rules on Summary Procedure, and that
is, the speedy disposition of case.
The issuance of a warrant of arrest presupposes the finding of probable cause. Hence, it is not proper to file motion for
judicial determination of probable cause after the issuance of warrant of arrest since there is no need to determine probable
cause. Of course, the order finding probable cause and requiring the issuance of warrant for being an interlocutory order is
subject to a motion for reconsideration. Such motion is not covered by the prohibition.
If a motion for judicial determination of probable cause will be allowed despite the issuance of warrant of arrest, and the
same is denied, the accused may file a motion for reconsideration. This will delay the case. But if the filing of a motion for
judicial determination of probable cause after the issuance of warrant is prohibited, although a motion for reconsideration of the
order finding probable cause is allowed, the delay of the case is not so much since there is only one motion to be resolved by the
court.
12th proposal on the Rules of Criminal
Procedure
ORIGINAL VERSION
RULE 111
SEC. 4. Effect of death on civil actions.—The death of the accused after arraignment and during the pendency of the criminal
action shall extinguish the civil liability arising from the delict.
However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after
proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased
without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty
(30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may
file against the estate of the deceased, (n)

PROPOSED REVISED VERSION


RULE 111
SEC. 4. Effect of death on civil actions.—The death of the accused before final judgment shall extinguish not only the criminal
liability but also civil liability arising from the crime. Civil action involving civil liability arising from other sources of
obligation survives despite the death of the accused.
Substitution of the deceased shall be governed by Section 16, Rule 3 of the Rules of Court. A final judgment entered in favor of
the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of
the deceased.

EXPLANATORY NOTE
The original version of Section 4, Rule 111 of the Rules of Criminal Procedure governs situation where the accused died
before final judgment. However, this rule is divided into two parts, one when the accused dies before the arraignment, and the
other, when death occurs after. Accordingly, if the accused died after arraignment, it shall “extinguish the civil liability arising
from the delict.” But if the accused dies before arraignment, the case shall be dismissed “without prejudice to any civil action
the offended party may file against the estate of the deceased.” By implication, if the accused dies before arraignment, the
offended party is allowed to file civil action against the estate of the deceased, which may involve civil liability arising from
crime.
The rule allowing the filing of civil action arising from crime if the accused dies before arraignment contradicts Article 89
of the Revised Penal Code in the lights of the interpretation made by the Supreme Court in the Bayotascase (236 SCRA 239).
Under Article 89, liability for “pecuniary liability” is extinguished when the death of the offender occurs before final judgment.
Some opines that the terms “pecuniary liability” mentioned Article 89 are not the same as civil liability arising from crime.
However, according to Justice Regalado, death of accused prior to final judgment terminates the civil liability directly arising
from and solely based on the offense committed. In Bayotas case and other allied cases, the Supreme Court agreed with the
opinion of Justice Regalado. That is why these cases ruled that death of the accused during the pendency of appeal extinguishes
civil liability arising from crime. What is therefore important is that the accused dies before the finality of judgment. If he dies
after final judgment, civil liability arising from crime survives. If he dies before final judgment, it extinguishes civil liability
arising from crime regardless of whether death occurs before or after arraignment.
The proposed revised version removes the last paragraph of original provision and replaces the phrase “after arraignment
and during the pendency of the criminal action” therein with “before final judgment” to disregard occurrence of death of
accused before or after arraignment as a basis for providing two separate rules.
The original version of Section 4, Rule 111 provides a special rule on substitution of deceased in case of independent civil
action under Articles 32, 33, 34 and 2176 of the Civil Code and civil action involving civil liability arising from other source of
obligation such as law, quasi-delict, contract, or quasi-contract. To provide uniformity of the rule, the proposed revised rules
adopt the rules on substitution under Section 16, Rule 3 of the Rules of Court.
The rule on implied institution of civil action with the criminal action and the consolidation of civil action and criminal action
under Sections 1 and 2 of Rule 111 of the Rules of Criminal Procedure does not apply to independent civil action and the civil
action involves civil liability arising from a source of liability other than crime. Hence, the proceedings in criminal action and
these civil actions are always separate. Since the proceedings are separate, criminal action should be governed by Rules of
Criminal Procedure while these civil actions should be governed by the Rules of Civil Procedure.

13th proposal on the Rules of Criminal


Procedure
ORIGINAL VERSION
RULE 116
SEC. 11. Suspension of arraignment.–Upon motion by the proper party, the arraignment shall be suspended in the following
cases:
(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently thereto. In such case, the court shall orderhis mental examination
and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with
the reviewing office. (12a)

PROPOSED REVISED VERSION


SEC. 11. Suspension of arraignment.–Upon motion by the proper party, the arraignment shall be suspended in the following
cases:
(a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently thereto. In such case, the court shall orderhis mental examination
and, if necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the
President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with
the reviewing office. (12a)
After the expiration of period in paragraph “c” of this Section, the trial court is bound to arraign the accused or to deny the
motion to defer arraignment.
Pendency of a motion for reconsideration filed with the Office of the Prosecutor is not aground to suspend the arraignment.

EXPLANATORY NOTE:
Before, there was a debate whether the 60-day period of suspension of arraignment in Section11 (c), Rule 116 of the
Rules of Criminal Procedures is mandatory or directory. The present jurisprudence sided with the interpretation that the same is
mandatory. In Samson vs. Daway, G.R. Nos. 160054-55, July 21, 2004,
“While the pendency of a petition for review is a ground for suspension of the arraignment, the aforecited provision limits the
deferment of the arraignment to a period of 60days reckoned from the filing of the petition with the reviewing office. It follows,
therefore, that after the expiration of said period, the trial court is bound to arraign the accused or to deny the motion to defer
arraignment.”
The Supreme Court in Trinidad vs. Ang, G.R. No. 192898, January31, 2011 reiterated the principle in Daway case. The
proposed revised rules incorporate the Daway principle.
Section 11, Rule 116 fails to include regulation on the effect of a motion for reconsideration on the resolution of the
prosecutor’s office on the arraignment of the accused. Because of this silence, several practitioners are still insisting for the
deferment of the arraignment of the accused pending resolution of their motion for reconsideration filed with the fiscal’s office.
The last paragraph In Ramiscal, Jr. vs. People, G.R. Nos. 172476-99, September 15, 2010,
“If the filing of a motion for reconsideration of the resolution finding probable cause cannot bar the filing of the corresponding
information, then neither can it bar the arraignment of the accused, which in the normal course of criminal procedure logically
follows the filing of the information. Petitioner failed to show that any of the instances (in Section 11, Rule 116 of the Rule of
Criminal Procedure) constituting a valid ground for suspension of arraignment obtained in this case. Thus, the Sandiganbayan
committed no error when it proceeded with petitioner’s arraignment, as mandated by Section 7 of RA 8493.”
Although what is involved in the Ramiscal case is proceeding in the Sandiganbayan, the principle crafted therein should be
incorporated in the Rules of Criminal Procedure. What is sauce for the goose is also the sauce for the gander.

14th proposal on Rules of Criminal


Procedure
ORIGINAL VERSION
Rule 112
SECTION 1. Preliminary investigation defined; when required.—Preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a
complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one
(1) day without regard to the fine. (1a)
PROPOSED REVISED VERSION
SECTION 1. Preliminary investigation defined; when required.—Preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a
complaint or information for an offense cognizable by the Regional Trial Court. If the offense is cognizable by the first level
court, preliminary investigation is not required unless otherwise provided by law.
EXPLANATORY NOTE
The rule that only cases cognizable with the Regional Trial Court are subject to preliminary investigation is highly being
considered by the Committee on Revision of Rules of Criminal Procedure.
Under the proposed revised version of the rules, if the offense is cognizable by the first level court, preliminary investigation is
not required unless otherwise provided by law. This rule recognizes the right of the accused to a preliminary investigation over
minor offense if the same is granted by existing law such as Section 38 of RA No. 409, the Revised Charter of City of Manila,
which provides that the fiscal of the city shall cause to be investigated all charges of crimes, misdemeanors, and violations of
ordinances.

15th proposal on the Rules of Criminal


Procedure
ORIGINAL VERSION
Rule 112
SEC. 13. Duplicity of the offense.—A complaint or information must charge only one offense, except when the law prescribes a
single punishment for various offenses. (13a)
PROPOSED REVISED VERSION
SEC. 13. Duplicity of the offense and splitting a single crime.—A complaint or information must charge only one offense,
except when the law prescribes a single punishment for various offenses.
If two or more complaints or informations are instituted on the basis of a single crime, which is split into two or more crimes,
the filling of the principal crime is available as a ground for the dismissal of the others. There is splitting of a single crime when
complaints or informations charge offenses, which are components of complex crime or special complex crime, or crimes, one
of which is an element of or an indispensable means to commit the other.
EXPLANATORY NOTE
Under Section 4, Rule 2 of the Rules of Civil Procedure, splitting a single cause of action is prohibited. Accordingly, if two or
more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. The purpose of the rule is to avoid multiplicity of suits.
The proposed revised provision of Rules of Criminal Procedure on splitting a single crime is the counterpart of the provision of
the Rules of Civil Procedure on splitting of a single cause of action. This proposed provision is designed to help the courts
unclog their dockets.

16th Proposal on the Rules of Criminal


Procedure
20 January 2014 at 01:38
ORIGINAL VERSION
Rule 117
SEC. 3. Grounds.–The accused may move to quash the complaint or information on any of following grounds:(a) That the facts
charged do not constitute an offense;(b) That the court trying the case has no jurisdiction over the offense charged;(c) That the
court trying the case has no jurisdiction over the person of the accused;(d) That the officer who filed the information had no
authority to do so;(e) That it does not conform substantially to the prescribed form;(f) That more than one offense is charged
except when a single punishment for various offenses is prescribed by law;(g) That the criminal action or liability has been
extinguished;(h) That it contains averments which, if true, would constitute a legal excuse or justification; and(i) That the
accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (3a)

PROPOSED REVISED VERSION

SEC. 3. Grounds.–The accused may move to quash the complaint or information on any of following grounds:(a) That the facts
charged do not constitute an offense;(b) That the court trying the case has no jurisdiction over the offense charged;(c) That the
court trying the case has no jurisdiction over the person of the accused;(d) That the officer who filed the information had no
authority to do so;(e) That it does not conform substantially to the prescribed form;(f) That more than one offense is charged
except when a single punishment for various offenses is prescribed by law;(g) That the criminal action or liability has been
extinguished;(h) That it contains averments which, if true, would constitute a legal excuse or justification; and(i) That the
accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise
terminated without his express consent.(k) That crime charged is a constituent of a complex crime or special complex crime, the
severe component of which is charged in another complaint or information, or the crime charged is an element of or an
indispensable means to commit another, which is charged in another complaint or information.

EXPLANATORY NOTE

If there is a violation of the rule on a splitting of a single cause of action under Section 4 of the Rules of Civil Procedure, the
remedy of the defendant is to file a motion of dismiss on the ground of litis pendentia if the other case containing the same
cause of action is pending, or res judicata if there is already a final judgment in the other case.

Under the original version of Section 3, Rule 117 of the Rules of Criminal Procedure, if there is splitting of a single crime, the
remedy of the accused is to file a motion to quash information on the ground of double jeopardy, which is the counterpart of res
judicata in Civil Procedure. That is why double jeopardy is also called as “res judicata dressed in prision grey.” However, the
concept of litis pendentia has no equivalent in criminal procedure. The proposed revision to Section 3, Rule 117 seeks to
introduce in the Criminal Procedure the counterpart of litis pendentia in Civil Procedure. This provision supplements the
proposed revised rule on splitting a single crime under Section 13, Rule 112.

Prior to the 2000 Revision of the Rules of Criminal Procedure, one of the ground to quash information is that when the accused
has been previously convicted or “in jeopardy of being convicted” or acquitted of the offense charged. Interpreting this
provision, Justice Florenz Regalado in his dissenting opinion in the case of People vs. Pineda, G.R. No. 44205 February 16,
1993 stated:
“Spelled out to the point of elemental details, said paragraph (h) actually provides for two modes constitutive of separate
grounds for quashal of a second indictment for the same offense. Recasting its provisions for greater clarity, the first mode
allows quashal where the accused has been previously convicted or acquitted of the same offense with which he is again
presently charged and in danger of a second conviction. This would correspond, in civil procedure, to res judicata as a ground
for dismissal. The second mode stated in the same paragraph contemplates the situation where the accused is only in jeopardy or
danger of being convicted in the first case, since no judgment or final order has yet been rendered therein, and he is now
charged anew with the same offense. This is equivalent, in civil case, to litis pendentia or auter action pendant, likewise a
ground for dismissal.”

In connection with the concept of litis pendentia dressed in prision grey, Justice Regalado wrote in his book, Remedial Law
Compendium:

“The Rules prohibits duplicitous information and declares the same to be quashable, but does not specifically provide for the
situation where a complex crime which should be properly charged in single information is made the subject of several
informations by charging each components crime thereof separately. It is submitted that, under such situation and provided all
other requisites are present, the proper remedy is to move to quash the other charges on the ground of double jeopardy.”

However, in the case of People vs. Pineda, supra, the majority held that there can be no double jeopardy if both cases are still
pending. The 2000 Revision of the Rules of Criminal Procedure deleted the phrase “in jeopardy of being convicted” to
incorporate the Pineda doctrine.

This rule creates an irregular situation where the court would resolve the defect in splitting complex crime or special complex
crime at the stage of rendering decision instead of at early stage of the case such as upon filing of information. In People vs.
Legaspi, 92167-68, July 14, 1995, Supreme Court ruled that accused cannot be convicted of special complex crime of robbery
with homicide constitutive of various crime alleged in two informations. However, in People vs. Laog, G.R. No. 178321,
October 5, 2011, the Supreme Court convicted the accused for special complex crime of rape with homicide despite the fact that
the accused was charged of homicide and rape in two separate informations.

The Supreme Court in the Laog case provides a solution to the problem of splitting crime, and that is, to convict the accused of
special complex crime even if the components thereof are charged in two different information. However, the Laog case does
not apply where one component of special complex crime is cognizable by the Regional Trial Court while the other by the first
level court.

To avoid multiplicity of suits and the unclog the dockets of the courts it is high time to adopt the concept of litis pendentia in
prision grey as explained by Justice Regalado. This is not anathema to the rule on double jeopardy. Litis pendentia in prision
grey and res judicata in prision grey as grounds for quashing information have different legal foundations. The latter is an
implementation of the constitutional rule against double jeopardy while the former is an implementation of the legislature
intention to punish a complex crime or special complex crime as a single crime.

Litis pendentia in prision grey also includes a situation where a crime is split into two or more crimes charged in different
infromations although one is just an element or an indispensable means to commit the other. It is a settled rule that in this kind
of a situation the latter absorbs the former. Hence, there is only one crime, such as treason absorbing murder or robbery by force
upon thing absorbing use of false name.

In Celino vs. CA, G.R. No. 170562, June 29, 2007, it was held that “When the other crime involved is one of those enumerated
under RA 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm
would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or
homicide,, or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat.”

Rephrasing the substance of the ruling in Celino case, where the other case involves rebellion, insurrection, sedition or
attempted coup d etat, the information for illegal possession of firearm should be quashed since the former absorbs the latter;
where the other case is homicide or murder, the information for illegal possession of firearm should be quashed since the latter
is just an aggravating circumstance of the former. Obviously, the ground for the quashal of information is not double jeopardy
or res judicata in prision grey since there is no final judgment yet. Although the Supreme Court did not describe the ground for
quashing the information, it is submitted that the basis of quashing the information for illegal passion of firearm is litis
pendentia in prision grey.
17th Proposal on the Rules of Criminal
Procedure
ORIGINAL VERSION
Rule 117
SEC. 2. Form and contents.–The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly
specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of
jurisdiction over the offense charged (2a)
PROPOSED REVISED VERSION
SEC. 2. Form and contents.–The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly
specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of
jurisdiction over the offense charged (2a)
The inclusion in a motion to quash information or complaint other grounds aside from lack of jurisdiction over the person of
the accused shall not be deemed a voluntary appearance and submission to the court’s jurisdiction.

EXPLANATORY NOTE
Filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one's person to
the jurisdiction of the court. Hence, accused or defendant cannot anymore question the jurisdiction of the court over his
person. However, there is no submission of his person to the jurisdiction of the court in the case of pleadings whose prayer is
precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance (Miranda vs. Tuliao, G.R.
NO. 158763, March 31, 2006).
In criminal case, the rule on special appearance by raising lack of jurisdiction over person of the accused is found in the case
of Sanchez vs. Demetrio, G.R. No. 111771-77, November 09, 1993, where the Supreme Court stated:
“The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information,
but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have
waived that objection and to have submitted his person to the jurisdiction of the court.”
However, special appearance in criminal cases, which does not constitute submission to court’s jurisdiction, is different from
that in civil cases. There is special appearance in a civil case by filing motions to dismiss on the ground of lack of jurisdiction
over the person of the defendant, whether or not other grounds for dismissal are included.
The La Naval Drug Corporation vs. CA, G.R. No. 103200, August 31, 1994 elucidates the current view in our jurisdiction that a
special appearance before the court--challenging its jurisdiction over the person through a motion to dismiss even if the movant
invokes other grounds--is not tantamount to estoppel or a waiver by the movant of his objection to jurisdiction over his person;
and such is not constitutive of a voluntary submission to the jurisdiction of the court(Garcia vs. Sandiganbayan, G.R. No.
170122, October 12, 2009).
In order to conform to the ruling in La Naval, which was decided by this Court in 1994, the former Section 23, Rule
14 concerning voluntary appearance was amended to include a second sentence in its equivalent provision in the 1997 Rules of
Civil Procedure: “SEC. 20. Voluntary appearance. – The defendant's voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.” (See NM Toths child & Sons Limited vs. Consolidated Mining
Company, G.R. No. 175799, November 28, 2011)

To provide uniformity of rule, the proposed revised provision seeks to introduce the La Naval doctrine in criminal action. The
concept of jurisdiction over the person vis a vis the rule on voluntary appearance in civil case is the same as that in criminal
case. Hence, the rule on special appearance in civil case should apply in a criminal case.

18th proposal on the Rules of Criminal


Procedure
23 January 2014 at 15:37
ORIGINAL VERSION
Rule 112
SEC. 14. Amendment or substitution.—A complaint or information may be amended, in form or in substance, without leaveof
court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of
court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the
offended party.
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19,Rule
119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.(14a)

Rule 119
SEC. 19. When mistake has been made in charging the proper offense.— When it becomes manifest at any time before
judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense
charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to
detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon
the filing of the proper information. (11a)

PROPOSED REVISED VERSION


SEC. 14. Amendment or substitution —A complaint or information may be amended, in form or in substance, without leave of
court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of
court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the
offended party.

When it appears at any stage but before judgment that a mistake has been made in charging the proper offense and the accused
cannot be convicted of the offense charged or any other offense necessarily included therein, the court shall dismiss the original
complaint or information upon the filing of a new one charging the proper offense. But when such mistake becomes manifest
during trial, the court may motu proprio direct the filing of the appropriate charge, and dismiss the case upon filing thereof. In
case of substitution, the accused shall not be discharged if there appears good cause to detain him and the court may require the
witnesses to give bail for their appearance at the trial. If the offense to be charged in the new information or complaint is
cognizable by the Regional Trial Court, re-investigation shall be conducted before substitution shall be allowed.

EXPLANATORY NOTES

There are two provisions in Rules of Criminal Procedure that govern substitution of information or
complaint; one is the third paragraph of Section 14, Rule 112, while the other is Section 19, Rule 119.

Under Rule 112 and Rule119, when a mistake has been made in charging the proper offense, the court shall dismiss the
original information or complaint upon the filing of a new one charging the proper offense.

Under Rule 119,substitution is proper where “the accused cannot be convicted of the offense charged or any other
offense necessarily included therein”. In sum, substitution requires the offense to be charged in the new information or
complaint is different from and is not necessarily included in the offense in the original one. Although Rule 112 is silent on this
matter; the Supreme Court En Banc ruled in Teehankee vs. Madayag, G.R. No. 103102, March 6, 1992 that substitution (under
Rule 112) requires or presupposes that the new information involves a different offense which does not include or is not
necessarily included in the original charge, hence the accused cannot claim double jeopardy. In Pacoy vs. Cajigal, G.R. No.
157472, September 28, 2007, the Supreme Court reiterated the ruling in Teehankee.
Rule 112 expressly requires that substitution must not place the accused in double jeopardy. While Rule 119 is silent on
this matter, the filing of new information or complaint after the dismissal of the original one shall not place the accused
in double jeopardy because the offense charged in the former is different from or is not necessarily included in the
offense charged in the latter.

In Rule 112, mistake in charging the proper offense appears at any time before judgment; while in Rule 119 such mistake
becomes manifest at any time before judgment. However, since Rule 119 governs the trial stage of a case, the permissible stage
for effecting that substitution must be during the trial. On the other hand, Rule 112 contemplates a longer time span to make
substitution, and that is, at any stage before judgment, which includes the period from the filing of the information up to and
before trial (See: Galvez vs. CA, G.R. No. 114046October 24, 1994).

Substitution under Rule 112 or Rule 119 can be made by the court motu proprio or upon motion of the public prosecutor.
In the case of Galvez, supra, the Supreme Court ruled:

“Rule119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial
court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of one
that it necessarily includes. It would primarily be the function of the court to motu proprio order the dismissal of the case and
direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the defense
initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a rare situation.
This provision, therefore, is more directly and principally directed to the trial court to invest it with the requisite authority to
direct by itself the dismissal and refiling of the informations therein contemplated.”

"Rule 110 (now Rule 112), on the other hand, provides the procedural governance for the prosecution of offenses. Section
14 thereof, quoted infra, provides in its second paragraph the procedure and requisites for the substitution of defective
information by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is
"at any time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in
charging the proper offense . . .” The situation under said Section 14contemplates a longer time span, inclusive of the
period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the error
would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact may be
perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the same. That
is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible in the offense
charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures
for the dismissal o fthe original information and the refiling of the correct one, otherwise he would be recreant to his duties."

The rules on substitution in Rule 112 and Rule 119 are almost the same, and yet, the Rules provide two separate
provisions to govern it. To simplify the rules, the proposed revision seeks to integrate the provision on substitution under
Rule 119 with that under Rule 112.

Under the proposed revision, substitution can be ordered by the court motu proprio or upon motion of the public
prosecutor when mistake in charging the proper offense appears after the filing of the information or complaint, or
becomes manifest during trial but before the judgment. This is an incorporation of the ruling in the Galvez case.

Under the proposed revision, substitution is only proper when the offense charged in the new information or
complaint is different from or is not necessarily included in the offense charged in the original. This adopts the principle
in Tehankeecase.

The phrase “provided the accused shall not be placed in double jeopardy” in Rule 112 is not included in the proposed
revision. Since the offense charged in the new information or complaint is different from or is not necessarily included in
the offense charged in the original, the accused will not definitely be place in double jeopardy by the filing of new
information or complaint. Hence, inserting the said phrase in the rule on substitution is just a surplusage.

Since substitution necessarily involves a substantial change from the original charge, another preliminary investigation is
entailed (Teehankee vs. Madayag, supra). The proposed revision incorporates this rule by providing reinvestigation is a
condition for substitution if the case is cognizable by the Regional Trial Court. Reinvestigation is not needed is the case is
cognizable by the first level court since preliminary investigation is not required therein.
19th proposal on the Rules of Criminal
Procedure
ORIGINAL VERSION

Rule 113

SEC. 7. Method of arrest by officer by virtue of warrant.—When making an arrest by virtue of a warrant, the officer shall
inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when
he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will
imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the
person arrested so requires, the warrant shall be shown to him as soon as practicable. (7a)

SEC. 8. Method of arrest by officer without warrant.—When making an arrest without a warrant, the officer shall inform the
person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an
offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to
so inform him, or when the giving of such information will imperil the arrest. (8a)

PROPOSED REVISED VERSION

SEC. 7. Method of arrest by officer by virtue of warrant.—When making an arrest by virtue of a warrant, the officer shall
inform the person to be arrested in a language known to and understood by him, of:(1) his rights to remain silent and to have
competent and independent counsel, preferably of his own choice; (2) his right to demand physical examination by an
independent and competent doctor of his own choice; and (3) the cause of the arrest and the fact that a warrant has been issued
for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of
such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after
the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

SEC. 8. Method of arrest by officer without warrant.—When making an arrest without a warrant, the officer shall inform the
person to be arrested in a language known to and understood by him of: (1) his rights to remain silent and to have competent
and independent counsel, preferably of his own choice; (2) his right to demand physical examination by an independent and
competent doctor of his own choice; and (3) his authority and the cause of the arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer
has opportunity to so inform him, or when the giving of such information will imperil the arrest. (8a)

EXPLANATORY NOTE

Under the 1973 and 1987 Constitutions, person under custodial investigation has the right to be informed of his right to
remain silent and to have an independent counsel. This is an adoption of the ruling in the case of Miranda vs. Arizona rendered
by US Supreme Court. Since this right is only available to a person under custodial investigation, an arrestee is not immediately
entitled to it prior to police investigation or questioning propounded to elicit incriminatory information from him. That is why
under the original version of Sections 7 and 8, Rule 113 of the Rules of Criminal Procedure, police officer has no obligation to
give Miranda warning to a person arrested. However, RA 7438, otherwise known as Custodial Investigation Law, has expanded
the scope of Miranda warning by imposing obligation to police officer to give such warning to a person arrested, even if he is
not yet under custodial investigation. Section 2 of RA No. 7439 provides:

"(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to
remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent counsel by the investigating officer."

Moreover, Section 12 of RA No. 9745, otherwise known as the Anti-torture Law provides:
"Section 12.- Right to' Physical, Medical and Psychological Examination. - Before and after interrogation, every person
arrested, detained or under custodial investigation shall have the right to he informed of his/her right to demand physical
examination by an independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her
own doctor, he/she shall he provided by the State with a competent and independent doctor to conduct physical examination.
The State shall endeavor to provide the victim with psychological evaluation if available under the circumstances. If the person
arrested is a female, she shall be attended to preferably by a female doctor. Furthermore, any person arrested, detained or
under custodial investigation, including his/her immediate family, shall have the right to immediate access to proper and
adequate medical treatment. The physical examination and/or psychological evaluation of the victim shall be contained in a
medical report, duly signed by the attending physician, which shall include in detail his/her medical history and findings, and
which shall he attached to the custodial investigation report. Such report shall be considered a public document."

The proposed revision incorporates the mandate under RA No. 7438 on Miranda warning and under RA No. 9745 on the
right to examination of the arrestee.

20th proposal on the Rules of Criminal


Procedure
ORIGINAL VERSION
Rule 113
SEC. 14. Right of attorney or relative to visit person arrested.—Any member of the Philippine Bar shall, at the request of the
person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any
other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can
also exercise the same right. (14a)
PROPOSED REVISED VERSION
SEC. 14. Right to visit person arrested.—Any person arrested shall be allowed visits at any hour of the day or, in urgent cases,
of the night by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization
duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by
the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

EXPLANATORY NOTE
The proposed revision is an implementation of the right to visit a person arrested under RA 7438, otherwise known as
Custodial Investigation Law.

21th proposal on the Rules of Criminal


Procedure
26 January 2014 at 00:17
ORIGINAL VERION
Rule 114
SEC. 4. Bail, a matter of right; exception.—All persons in custody shall be admitted to bail as a matter of right, with sufficient
sureties, or released on recognizance as prescribed bylaw or this Rule (a) before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (4a)

SEC. 5. Bail, when discretionary.—Upon conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and
acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-
bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the
appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail
shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar
circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or
conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there
is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice
to the adverse party in either case. (5a)

SEC. 6. Capital offense, defined.—A capital offense is an offense which, under the law existing at the time of its commission
and of the application for admission to bail, may be punished with death. (6a)

SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.—No person charged
with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution. (7a)

REVISED PROPOSED VERSION


SEC. 4. Bail, a matter of right. – All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or
released on recognizance as prescribed by law or this Rule before or after conviction of a bailable offense except as provided in
Section 5 of this Rule. Bail is a matter of right even before a person in custody is formally charged in court.

SEC. 5. Bail, a matter of discretion. - Upon conviction by the Regional Trial Court of a bailable offense and the penalty
imposed is imprisonment exceeding six (6) years, admission to bail is discretionary. However, the accused shall be denied bail,
or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar
circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or
conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there
is undue risk that he may commit another crime during the pendency of the appeal.

The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the
appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the
appeal under the same bail subject to the consent of the bondsman.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice
to the adverse party in either case.

SEC. 6. Non-bailable offense, defined.—Anon-bailable offense is an offense where the penalty or a component thereof
prescribed by the law existing at the time of its commission and of the application for admission to bail is death, reclusion
perpetua or life imprisonment. (6a)

SEC. 7. Non-bailable offense.—No person charged with a non-bailable offense shall be admitted to bail when evidence of guilt
is strong, regardless of the stage of the criminal prosecution.
When an accused is charged with a non-bailable offense and is out on bail and after trial is convicted by the trial courtof the
offense charged, his bond shall be cancelled and the accused shall be placed in confinement pending resolution of his appeal.

EXPLANATORY NOTE
Under the original version of Rule 114 of the Rules of Criminal Procedure, bail as matter of right or as a matter of discretion
will depend on what court renders the conviction of a bailable offense. If the conviction is rendered by the first level court, it is
a matter of right under Section4. If is rendered by the Regional Trial Court, it is a matter of sound discretion under first
paragraph of Section 5 or a matter of stringent discretion under the third paragraph thereof (see; People vs. Laviste, G.R. No.
189122, March 17, 2010).

The rule on bail as a matter of sound discretion covers a situation where the Regional Trial Court has sentenced the accused of a
penalty of less than six years of imprisonment. According to Regalado, after conviction by the Regional Trial Court imposing a
penalty of imprisonment which does not exceed 6years, bail is a matter of discretion. On the other hand, the rule on bail as
matter of stringent discretion requires that the penalty imposed is imprisonment exceeding six (6) years.
However, these rules may sometimes create an unfair situation. For example, if the accused is convicted by the Metropolitan
Trial Court of attempted homicide and sentenced him to suffer penalty of 6 years of prision correccional, bail is a matter of
right. But if the accused was incorrectly charged with frustrated homicide, and the Regional Trial Court convicted him of
attempted homicide and sentenced him to suffer the penalty of 6 years of prision correccional, bail is a matter of sound
discretion. In sum, since the accused was convicted by the Regional Trial Court, bail is not a matter of right. In this situation,
the accused is made to suffer the consequence of the mistake committed by the public prosecutor in charging him with
frustrated homicide, which is cognizable by the Regional Trial Court, instead of attempted homicide, which is cognizable by the
inferior court.

Under proposed revision, the rules on bail under Section 5, whether as a matter of sound discretion or stringent discretion,
applies to situation where the penalty imposed by the Regional Trial Court upon conviction of the accused is an imprisonment
exceeding six years. In other word, if the penalty imposed does not exceed 6 years of imprisonment, bail is a matter of right
whether the conviction is rendered by the first level court or Regional Trial Court because the applicable rule is Section 4.
In Ocampo vs. Bernabe, G.R. No. L-439, August 20, 1946, the Supreme Court ruled that bail is a matter of right, whether the
accused is charged or not yet charged in court. The last sentence of Section 4 of the proposed revised rules adopts this ruling.
Under the 1940 Rules of Criminal Procedure, capital offense is not bailable while non-capital offense is bailable. That is why it
provide a definition of capital offense to simply the rules on bailable and non-bailable offenses. The provisions on capital
offenses are still found in the present Rules of Criminal Procedure. However, under the present procedural set up, non-bailable
offense is not limited to capital offense but it includes offense punishable by reclusion perpetua or life imprisonment. To
simplify the rules on bailable and non-bailable offenses, the proposed revision replaces the provisions on “capital offense” with
those on “non-bailable offense.”

Under Section 6 of the proposed revised rules, non-bailable offense includes an offense where the penalty prescribed by law is
death penalty. Although RA 9346 prohibits the imposition of death penalty, it did not alter the penalty for heinous crimes. It
merely automatically reduces death penalty to reclusion perpetua or life imprisonment. However, for purposes of determining
the bailability or non-bailability of an offense, the penalty of death should still be the penalty to be reckoned with (See: People
vs. Quitorio, G.R. No. 116765 January 28, 1998; People vs. Sarcia, G.R. No. 169641,September 10, 2009; People vs. Jacinto,
G.R. No. 182239, March 16, 2011).

Under Section 6 of the proposed revised rules, non-bailable offense includes an offense where a component of the
penalty prescribed by law is death penalty, reclusion perpetua or life imprisonment. Thus, illegal possession of dangerous drugs
punishable by a penalty of 20 years and 1 day to life imprisonment under Section 11 (2) of RA No. 9165, and child prostitution
punishable by a penalty of reclusion temporal in its medium period to reclusion perpetua under Section 5 of RA No. 7610 are
considered non-bailable offenses.

An accused who is charged with a non-bailable shall not be entitled to bail as a matter of right even if he appeals the case since
his conviction clearly imports that the evidence of his guilt of the offense charged is strong (People vs. Laviste, supra).Hence,
Administrative Circular No.2-92, January20, 1992 provides: “When an accused is charged with a capital offense or an offense
which under the law at the time of its commission and at the time of the application for bail is punishable by reclusion
perpetua and is out on bail and after trial is convicted by the trial court of the offense charged, his bond shall be cancelled and
the accused shall be placed in confinement pending resolution of his appeal.” The last paragraph of Section 7 of the proposed
revised rules adopts the guideline in Administrative Circular No. 2-92.
22th proposal on the Rules of Criminal
Procedure
ORIGINAL VERSION

Rule 114
SEC. 2. Conditions of the bail; requirements.—All kinds of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in form at all stages of the case until
promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to
it;
(b) The accused shall appear before the proper court whenever required by the court or these Rules;
(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his
right to be present thereat. In such case, the trial may proceed in absentia; and
(d) The bondsman shall surrender the accused to the court for execution of the final execution.
The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions
required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles
of the accused must be attached to the bail. (2a)

PROPOSED REVISED VERSION

SEC. 2. Conditions of the bail; requirements.—All kinds of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in form at all stages of the case until
promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to
it;
(b) The accused shall appear before the proper court whenever required by the court or these Rules;
(c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his
right to be present thereat. In such case, the trial may proceed in absentia;
(d) The accused shall not transfer his residence without informing the court. Neither shall he travel outside the country without
permission from the court. The court may impose conditions for the travel of the accused abroad; and
(d) The bondsman shall surrender the accused to the court for execution of the final execution.
The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions
required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and rightprofiles
of the accused must be attached to the bail.

EXPLANATORY NOTE

There are occasions that the accused are waiving their right to appear at the trial. Unless the rules or the court requires them to
appear, the proceedings are being conducted without the presence of the accused because of such waiver. After a lengthy trial,
the court may render a judgment of conviction only to find out that the accused cannot anymore be located. The proposed
revision regarding restriction on the transfer of residence and travel abroad is intended to secure that the accused is within the
reach of the court anytime his appearance is needed. This rule is designed to detect at the early stage if the accused is already
hiding to evade criminal prosecution so that the court can immediately tap the law enforcers to look for him.

The authority of the court to impose conditions for the travel of the accused abroad under the proposed revision is in accordance
with the cases of Marcos vs. Sandiganbaya, G.R. Nos. 115132-34August 9, 1995, Manotoc vs. CA, G.R. No. L-62100, May 30,
1986 and Silverio vs.CA, G.R. No. 94284 April 8, 1991 which have recognized the power of the court to restrict the right of the
accused to travel because of the condition imposed upon him when he posted bail, and that is to make himself available at all
times whenever the court requires his presence.
23rd proposal on the Rules of Criminal
Procedure
PROPOSED INCORPORATION OF THE RULE ON HOLD-DEPARURE ORDER

RULE ___
HOLD-DEPARTURE ORDER
Section 1. Issuing court - Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the
Regional Trial Courts.
Section 2. Furnishing copy of the order - The Regional Trial Courts issuing the Hold-Departure Order shall furnish the
Department of Foreign Affairs (DFA) and the Bureau of Immigration (BI) of the Department of Justice with a copy each of the
Hold-Departure Order issued within twenty-four (24) hours from the time of issuance and through the fastest available means of
transmittal;
Section 3. Contents of hold-departure order - The Hold-Departure Order shall contain the following information:
a. The complete name (including the middle name), the date and place of birth and the place of last residence of the person
against whom a Hold-Departure Order has been issued or whose departure from the country has been enjoined;
b. The complete title and the docket number of the case in which the Hold-Departure Order was issued;
c. The specific nature of the case; and
d. The date of the Hold-Departure Order.
If available, a recent photograph of the person against whom a Hold-Departure Order has been issued or whose departure from
the country has been enjoined should also be included.
Section 4. Effects of acquittal of accused or dismissal of case - Whenever (a) the accused has been acquitted; (b) the case has
been dismissed, the judgment of acquittal or the order of dismissal shall include therein the cancellation of the Hold-Departure
Order issued. The courts concerned shall furnish the Department of Foreign Affairs and the Bureau of Immigration with a copy
each of the judgment of acquittal promulgated or the order of dismissal twenty-four (24) hours from the time of
promulgation/issuance and through the fastest available means of transmittal.

EXPLANATORY NOTE

As early as 1997, the Supreme Court issued Circular No. 39-97 regulating the issuance of hold-departure order. Under
this rule, only the Regional Trial Court can issue this order. However, despite of this rule, several judges of the first level court
are issuing hold-departure order in violation of the rule.

In the following cases, judges were administratively sanctioned for violation the rule on hold-departure order: A.M. No. 02-1-
27-MCTC, May 07, 2002, Hold-Departure Order issued by Judge Salvador M. Occiano, MCTC-Nabua, Camarines Sur, in
Criminal Cases Nos. 7353 and 7363; A.M. No. 01-9-245-MTC, December 05, 2001, RE: Hold-Departure Order issued by Judge
Agustin T. Sardido, MTC, Koronadal, South Cotobato in Criminal Case No. 19418; A.M. No. 99-12-192-MTC, January 26,
2000, Hold Departure Order issued by Acting Judge Aniceto L. Madronio, Municipal Trial Court, Manaoag, Pangasinan in
Criminal Case No. 5275; A.M. No. 99-8-126-MTC, September 22, 1999, Issuance of Hold Departure Order of Judge Luisito T.
Adaoag, MTC, Camiling, Tarlac; A.M. No. 00-1281-MTJ, September 14, 2000, RE: Hold-Departure Order dated August 9,
1999 issued by Judge Salvador B. Mendoza, MCTC, Poro-San Francisco-Tedela-Pilar, Poro, Cebu; A.M. No. 01-9-246-MCTC,
October 09, 2001, RE: Hold Departure Order issued in Criminal Case No. 2735, Office of the Court Adminstrator, Complainant
vs. Judge Alipio M. Aragon, Acting Presiding Judge, Third Municipal Circuit Trial Court, Tumauini-Delfin Albano, Isabela,
Respondent; A.M. No. 99-8-109-MCTC, August 25, 1999, Hold Departure Order issued by Judge Eusebio M. Barot, MCTC,
Branch 2, Aparri, Calayay, Cagayan; A.M. No. 98-10-141-MTCC, November 18, 1998, Re: Hold Departure Order dated April
13, 1998 issued by Judge Juan C. Nartatez, Municipal Trial Court, Branch 3, Davao City; A.M. 99-9-141-MTCC, November
25, 1999; Hold Departure Order issued by Judge Felipe M. Abalos, MTCC-Branch 1, Dipolog City in Criminal Cases Nos.
15521 & 15522; A.M. No. MTJ-01-1351 (formerly OCA IPI No. 99-738-MTJ), January 27, 2004, Dr. John M.W. Grieve vs.
Judge Cornelio T. Jaca; A.M. No. RTJ-04-1885, OCA-IPI No. 03-1687-RTJ, November 17, 2004, State Prosecutor Pablo
Formaran III, Atty. Felino M. Ganal and Kanemitsu Yamaoka vs. Judge Marivic Trabajo-Daray, Regional Trial Court, Branch
36, General Santos City; A.M. No. RTJ-04-1850, July 14, 2004, Judge Lorinda T. Mupas vs. Judge Dolores L. Español,
Regional Trial Court, Branch 90, Dasmariñas, Cavite; A.M. RTJ No. 03-1775, April 30, 2003, Dr. Isagani A. Cruz vs. Judge
Philbert I. Iturralde, Regional Trial Court, Antipolo City, Branch 72; A.M. No. MTJ-01-1349, July 12, 2001, Bernadette
Mondejar vs. Judge Marino S. Buban, MTCC, Tacloban City Branch 1; A. M. No. RTJ-01-1635, September 17, 2002, Office of
the Court Administrator vs. Judge Lucenito N. Tagle, Regional Trial Court, Branch 20, Imus, Cavite;

To further inform the judges of the first level court regarding the rule on hold-departure order, the proposed revision
seeks to incorporate the provisions of Circular No. 39-97 in the Rules of Criminal Procedure.

Possession of picklock for carnapping, not


punishable
Under the classical theory, on which the Revised Penal Code is principally based, a man is essentially a moral creature with an a
bsolutely free will to choose between good and evil. If despite of such free will, he still commits an evil act prohibited by law, t
he State will penalize him as a measure of retribution. Since the Revised Penal Code is based on the classical school of thought,
it is the identity of the mens rea, which is considered the predominant consideration. Actus reus should be committed with guilt
y mind to justify the imposition of penalty.

Since the internal criminality of the offender is an indispensable element of a felony, as a general rule acts preparatory to the co
mmission of a crime are not yet punishable even in the attempted phase because they have not ceased to be equivocal. The chara
cter of these acts does not unequivocally and clearly reveal the criminal mental state of the actor. The State and society would n
ot immediately demand retributive justice from a person whose criminal intention is not yet certain.

Possession of instruments intended for the commission of a crime is a preparatory act, which is not subject to penalization. How
ever, this rule is not without exception. Mere possession of picklocks is punishable under Article 304 of the Revised Penal Code
. But since criminalization of preparatory act such as possession of picklock is an exception rather than the rule, Article 304 sho
uld be construed strictly within the confinement of its letters and its scope should not be expanded to arbitrarily cover an act, wh
ich is not clearly within its context. To rule otherwise is to offend the dogmatic principle of pro reo.

Under Article 304, picklock or similar tools, possession of which is punishable, refer to those specially adapted to the commissi
on of the crime of robbery. The word “robbery” in this provision for obvious reason pertains to robbery by using force upon any
thing, an indispensable ingredient of which is entry into
the building. In sum, the picklock or similar tools to make possession thereof punishable under this penal provision must be esp
ecially adopted as a means to enter a building for purpose of committing robbery therein.

Article 293 of the Revised Penal Code provides “Any person who, with intent to gain, shall take any personal property belongin
g to another, by means of violence or intimidation of ny person, or using force upon anything shall be guilty of robbery."

The use of the


word “anything” in the phrase “using force upon anything” is erroneous. This term linguistically encompasses all kinds of prop
rty, real or personal. However, contrary to the sweeping and unrestricted context of the word "anything", Articles 299 ans 302 h
ave confined its concept to a building, or a closed or sealed receptacle or furniture situated therein. The building may be an inha
bited house, public building, edifice devoted to religious worship, or its dependencies, or uninhabited house or private building.

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

However, motor vehicle is not a building within the contemplation of Article 299 or 302 (See: Revised Penal Code, Book 2, CA
Justice Luis
Reyes). Thus, taking motor vehicle after breaking its window, by means of simulation of authority, by using false name or pickl
ock is not robbery by using force upon anything (People vs. Jaranilla, L-28547,February 24,
1974). Such taking constitutes of the crime of simple theft under Article 309 of the original version of the Revised Penal Code,
qualified theft under Article 310 as amended by RA 120, or presently carnapping under RA No. 6539.
Taking of motor vehicle as a simple theft prior to RA No. 120, qualified theft under the said amendatory law or as carnapping u
nder RA No. 6539 is not within the contemplation of the term “robbery” in Article 304, which punishes possession of picklock.
In sum, possession of picklock especially adapted for the taking motor vehicle is not punishable under this provision.

While it is true that using force upon thing is a mode of committing carnapping, which made the concept of this crime similar to
robbery, there is no express provision in RA No. 6539 or implied intention thereof on criminalization of
possession of picklock for carnapping. Though possession of picklock for carnapping is as reprehensible as that for robbery, in
the absence of a law imposing penalty for the former, the accused should not be made criminally accountable for commission t
hereof. Nulum crimen nulla poena sine lege.

SALN
Section 7 of RA No. 3019 provides:

“Section 7. Statement of assetsand liabilities. Every public officer, within thirty days after theapproval of this Act or after
assuming office, and within the month of Januaryof every other year thereafter, as well as upon the expiration of his term
ofoffice, or upon his resignation or separation from office, shall prepare andfile with the office of the corresponding
Department Head, or in the case of aHead of Department or chief of an independent office, with the Office of thePresident, or
in the case of members of the Congress and the officials andemployees thereof, with the Office of the Secretary of the
corresponding House,a true detailed and sworn statement of assets and liabilities, including astatement of the amounts and
sources of his income, the amounts of his personaland family expenses and the amount of income taxes paid for the next
precedingcalendar year: Provided, That public officers assuming office less than twomonths before the end of the calendar
year, may file their statements in thefollowing months of January.”
Section 8 of RA No. 6713 provides:

“SECTION 8. Statements andDisclosure. — Public officials and employees have an obligation toaccomplish and submit
declarations under oath of, and the public has the rightto know, their assets, liabilities, net worth and financial and
businessinterests including those of their spouses and of unmarried children undereighteen (18) years of age living in their
households.
(A)Statements of Assets and Liabilitiesand Financial Disclosure. — All public officials and employees, exceptthose who serve in
an honorary capacity, laborers and casual or temporaryworkers, shall file under oath their Statement of Assets, Liabilities and
NetWorth and a Disclosure of Business Interests and Financial Connections andthose of their spouses and unmarried children
under eighteen (18) years of ageliving in their households.
XXXXXX
Thedocuments must be filed: (a) within thirty (30) days after assumption ofoffice; (b) on or before April 30, of every year
thereafter; and (c) withinthirty (30) days after separation from the service.”
Article11, Section 17 of the 1987 Constitution provides:
“Section17. A public officer or employee shall,upon assumption of office and as often thereafter as may be required by
law,submit a declaration under oath of his assets, liabilities, and net worth.”
Failureto file SALN as required by law is a violation of Section 8 of RA No. 6713 and Section 7 of RA No. 3019
(ConcernedTaxpayer vs. Doblada, A.M. No. P-99-1342, June 8, 2005). Since both lawsprovide a penalty for failure to file
SALN, the offender should only beprosecuted and punished either under one or the other.
However, Section 7 of RA No. 3019 is deemed modified by Section 8 of RA No.6713. The court takes judicial notice of the fact
that public officers are nowsubmitting SALN in compliance with Rules Implementing the Code of Conduct andEthical
Standards for Public Officials and Employees issued by the CivilService Commission. They are required to file the SALN “on
or before April 30,of every year” as required under RA No. 6713 and not “within the month of January of every otheryear” as
mandated under RA No. 3019.
Section 8 of RA No. 6713 excludes public officials and employees, who serve in anhonorary capacity, laborers and casual or
temporary workers from therequirement of filling SALN. If these public officers are excused from fillingSALN under RA 6713,
it would be absurd to criminally make them responsible underRA No. 3019 for failure to file it. By parity of reasoning, if a
public officerfiled a SALN in April of a certain year in compliance of RA No. 6713 he shouldnot be made criminally liable
under RA No. 3019 which requires that the SALNshould be filed within the month of January.
RA No. 3019 is enacted in 1960or prior to the 1987 Constitution, while RA No.6713 is passed precisely toimplement the
constitutional provision on SALN. Section 8 of RA No. 6713 is thelatest legislative expression that gives spirit and substance to
State policyof transparency and public accountability. Hence, the time regulation and theexclusionary rule under RA No. 6713
regarding the filing of SALN is controllingeven if the accused is charged for failure to file SALN under Section 7 of RANo.
3019.

Probationable crimes of alarm and scandal


and direct assault
Under the original version of PD No. 968, alarm and scandal and direct assault were probationable
since the penalties prescribed for these crimes are not more than 6 years of imprisonment. However, on
October 5, 1985, PD 1990 had amended Section 9 of PD No. 968 by making crimes against public
disorder non-probationable. Hence, the benefits of PD No. 968 as amended by PD 1990 could not be
extended to those convicted of direct assault (2012 Bar Examination) and alarm and scandal (2013 Bar
Examination) because these are crimes against public disorder. However, RA No. 10707, which was
approved on November 26, 2015, has amended PD No. 968 by deleting crime against public disorder in
Section 9 thereof. In sum, under the present law on probation, alarm and scandal and direct assault are
now probationable.
INCREMENTAL PENALTY FOR QUALIFIED THEFT
If the value ofthe thing stolen is 32,000 pesos or more, there are three matters that shouldbe considered in the imposition of
penalty for qualified theft, to wit: theprincipal penalty (prision mayor in itsminimum and medium periods to be applied in its
maximum period); incrementalpenalty (one year for every P10,000.00 in excess of P22,000.00) under Article 309; and
thegraduation of penalty by two degrees under Article 310. There are two schoolsof thought on the application of Articles 309
and 310.

First school of thought – The rule on graduation of penalty by twodegrees under Article 310 shall be applied first before
the application of therule on incremental penalty under Article 309.

Qualifiedtheft shall be punished by the penalty next higher by two degrees than prision mayor in its minimum and
mediumperiods to be applied in its maximum period (Article 310). The penaltysuperior by two degrees than this penalty
is reclusion temporal in its medium and maximum periods, which shallbe imposed in its maximum period.

Theindeterminate minimum penalty shall be fixed anywhere within the range of prision mayor in its maximum period
toreclusion temporal in its minimum period (10 years and 1 day to 14 yearsand 8 months), which is the penalty next lower
thanthat prescribed, while the indeterminate maximum penalty shall be fixed anywherewithin the range of the maximum period
of reclusiontemporal in its medium and maximum periods (18 years, 2 months and 21 days to 20 years) plusadditional penalty
of one year for every P10,000.00 in excess of P22,000.00 but the total of the penaltywhich may be imposed shall not exceed
twenty years (Article 309). Hence, thecourt may sentence the accused to suffer an indeterminate penalty of:

10 years and 1 day of prisionmayor as minimum to 20 years of reclusiontemporal as maximum (Taopa vs. People, G.R. No.
184098, November 25, 2008,First Division; Ringor vs. People, G.R. No. 198904, December 11, 2013, FirstDivision); or

14 years and 8 months of reclusiontemporal as minimum to 20years of reclusion temporal asmaximum (People vs. Salonga.
G.R. No. 131131,June 21, 2001, Third Division)

Second school of thought – The rule on incremental penalty under Article309 shall be applied first before the application of the
rule on graduation ofpenalty by two degrees under Article 310.
The principal penaltyshall be fixed anywhere within the range of the maximum period of prision mayor in its minimum and
mediumperiods (8 years, 8 months and 1 day to 10 years) plusincremental penalty of oneyear for every one year for
every P10,000.00 in excess of P22,000.00 but the total of the penaltywhich may be imposed shall not exceed twenty years
(Article 309).The total penalty after combining the principal penalty and incremental penaltyshall be graduated two degrees
higher (Article 310).

If the totalpenalty after combining the principal penalty and incremental penalty is 20years of reclusion temporal, thecourt shall
sentence the accused to reclusionperpetua (People vs. Zapanta, G.R. No. 170863,March 20, 2013, Second Division; People vs.
Tanchanco, G.R. No. 177761, April18, 2012, First Division; Peoplevs. Mercado, G.R. No. 143676, February 19, 2003, First
Division; People vs.Sison, G.R. No. 123183, January 19, 2000, Second Division.

Another view:

If the totalpenalty after combining the principal penalty and incremental penalty is 20years of reclusion temporal, this
penaltyshall be graduated two degrees higher, and that is death penalty. Since deathpenalty is not specifically designated by law,
the imposable penalty underArticle 74 of the Revised Penal Code is reclusionperpetua with the accessory penalties for death
penalty under Article 40.Since Article 74 of the Revised Penal Code was based on Article 93 of the OldPenal Code, the convict
cannot be pardoned until forty yearshad elapsed. Hence, the court shall sentence the accused to suffer 40 years ofreclusion
perpetuawith the accessory penalties of Article 40 (Peoplevs. Canales, G.R. No. 126319, October 12, 1998, Second Division;
People vs. Chun, G.R. No. 158064, June 30, 2005,Second Division; People vs. Cristobal, G.R. No. 159450, March 30, 2011,
ThirdDivision).

Legislating the Colinares principle


MB CAMPANILLA·SUNDAY, 3 JANUARY 2016

In Colinares vs. People, G.R. No. 182748, December 13, 2011 - The accused, who was convicted by
the lower court of a non-probationable offense of frustrated homicide, but on appeal was found guilty
of a probationable offense of attempted homicide, may apply for probation upon remand of the case to
the RTC because of the following reasons: (1) The Probation Law never intended to deny an accused
his right to probation through no fault of his; (2) If the accused will not be allowed to apply for
probation, he will be made to pay for the trial court’s erroneous judgment; (3) While it is true that
probation is a mere privilege, the accused has the right to apply for that privilege; (4) Under the law,
appealing from judgment of conviction is a waiver right to apply for probation. In this case, the accused
did not appeal from the judgment of a conviction for attempted homicide rendered by the appellate
court.

In Villareal vs. People, G.R. No. 151258, December 1, 2014, accused was convicted of homicide, a
non-probationable crime, by the trial court. However, the SC found them liable for reckless imprudence
resulting in homicide, which is a probationable crime, because of lack of dolo. They can still apply for
probation. The SC reaffirmed the Colinares principle.

In Dimakuta v. People, G.R. No. 206513, Oct. 20, 2015, the Supreme Court En Banc abandoned the
doctrine in Colinares case. However, RA No. 10707, which was approved on November 26, 2015, has
adopted the Colinares doctrine. Under Section 4 of PD 968 as amended by RA No. 10707, when a
judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such
judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such decision becomes final. This
notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty.
Previous conviction may constitute a bar
to probation
MB CAMPANILLA·SUNDAY, 3 JANUARY 2016

Under Section 9 of PD No. 968, the benefits of the probation shall not extend to those who have
previously been convicted by final judgment of an offense punished by imprisonment of not less than 1
month and 1 day and/or a fine of not less than P200.

However, RA No. 10707, which was approved on November 26, 2015, has amended PD No. 968 by
increasing the penalty for the offense under previous conviction, which will constitute a bar to
probation for the offense under the present conviction.

Under PD No. 968 as amended by RA No. 10707, the benefits of the probation shall not extend to
those who have previously been convicted by final judgment of an offense punished by imprisonment
of more than 6 months and 1 day and/or a fine of more than P1,000.

However, even if the penalty for the offense under previous conviction is lesser than that as stated
above, one cannot avail of probation for the offense under present conviction if he already availed of
the benefit of probation for the previous offense.

Complex concept of simulation of birth


MB CAMPANILLA·SATURDAY, 9 JANUARY 2016

Physician or surgeon who, in violation of the duties of his profession, shall cooperate in the execution
of simulation of births is liable under Article 347 of the Revised Penal Code. If the birth of the child is
simulated by the doctor for the purpose of selling, trading or dealing with the child, the crime
committed is attempted child trafficking or attempted trafficking in person. Simulation of birth of a
child by a doctor, nurse, hospital or clinic employee or midwife for the purpose of child trafficking is
constitutive of the crime of attempted child trafficking under Section 8 of RA No. 7610. Simulating a
birth for the purpose of selling the child is attempted trafficking in person under Section 4-A of RA No.
9208 as amended by RA No. 10364.If after the simulation of birth, the child is delivered to the buyer or
child trafficker, the crime committed is child trafficking. Engaging in trading and dealing with children
such as buying and selling or barter is constitutive of the crime of child trafficking under Section 7 of
RA No. 7610. If the trafficker bought the child, whose birth was simulated, for prostitution,
pornography, slaver, force labor, or removal of organ, the crime committed is qualified trafficking in
person. Transfer by giving or receiving of payments or benefits to achieve the consent of a person
having control over another person for the purpose of exploitation constitutes trafficking in person
under Section 4 in relation to Section 3 of RA No. 9208. The fact that the trafficked person is a child is
a qualifying circumstance under Section 6 thereof.

Probation as a new mode of extinguising


criminal liability
MB CAMPANILLA·FRIDAY, 8 JANUARY 2016

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

Probation as a new mode of extinguising


criminal liability
MB CAMPANILLA·FRIDAY, 8 JANUARY 2016

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

Constitutionality of Reclusion Perpetua


for 4o years
MB CAMPANILLA·MONDAY, 11 JANUARY 2016

If the total penalty for qualified theft under Article 310 of the Revised Penal Code after combining the
principal penalty and incremental penalty is 20 years of reclusion temporal, this penalty shall be
graduated two degrees higher, and that is death penalty. However, reclusion perpetua and not death
penalty shall not be imposed pursuant to Article 74 of the Revised Penal Code, which provides that:
“In cases in which the law prescribes a penalty higher than another given penalty, without specifically
designating the name of the former, if such higher penalty should be that of death, the same penalty
and the accessory penalties of Article 40, shall be considered as the next higher penalty. The provision
prohibits the imposition of the death penalty resulting from the graduation of the penalty by one or
more degrees higher. However, although the principal penalty is reclusion perpetua, the accessory
penalties deemed imposable are that of death penalty under Article 40. It bears stressing that Article 74
of the Revised Penal Code was based on Article 93 of the Old Penal Code which provided that if the
penalty is reclusion perpetua, the next higher penalty would be the same penalty but the convict in such
cases cannot be pardoned until forty years had elapsed. Consequently, accused should be meted the
penalty reclusion perpetua for 40 Years with the accessory penalties of death under Article 40 of the
Revised Penal Code. In fine, he is not entitled to pardon before the lapse of the forty-year period
(People vs. Canales, G.R. No. 126319, October 12, 1998, Second Division; People vs. Chun, G.R. No.
158064, June 30, 2005, Second Division; People vs. Cristobal, G.R. No. 159450, March 30, 2011,
Third Division).

Comment:

Article 93 of the Old Penal Code could not prohibit the President in granting pardon to offender, who
was sentenced to suffer reclusion perpetua by reason of Article 74 and has not serve 40 years of
imprisonment. First, the Old Penal Code was already repealed by the Revised Penal Code. Second, the
pardoning power of the President is discretionary; it should be noted that the Old Penal Code was
enacted by virtue of Spanish Royal Order dated September 4, 1884; at that time the Spanish
government had the authority to limit the pardoning power of the Chief Executive of the Island of the
Philippines, a colony of Spain; at present, the power of the President to grant executive clemency is not
subject to limitations other than those mentioned in the Constitution. Section 19, Article III of the
Constitution provides: “Except in cases of impeachment or as otherwise provided in this Constitution,
the President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after
conviction by final judgment.

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

Moreover, applying Article 61 (2) of the Revised Penal Code in reverse, the penalty two degrees higher
than reclusion temporal is death penalty. However, there is no rule in Article 61 that provides the
graduation of 20 years of reclusion temporal. If the accused is a minor, Article 61 has no rule on
graduating by one degree lower the penalty of 20 years of reclusion temporal.

QUALIFIED MALICIOUS MISCHIEF


MB CAMPANILLA·WEDNESDAY, 4 MAY 2016

When the case was called for arraignment, both parties appeared. Upon reading the Information, the
court noticed that the accused is charged for the crime of Malicious Mischief with the use of the
homemade shotgun/“sumpak”.
Under section 3 of RA 10591, a sumpak, which is an illegally manufactured firearm, is considered as a
loose firearm. Hence, there is a need to revisit RA No. 10591 in relation to malicious mischief to
determine if the court has jurisdiction over this case.

If a crime is committed by the person without using the loose firearm, illegal possession of loose
firearm shall be considered as a distinct and separate offense in accordance with Section 29, RA No.
10591. Applying this rule in reverse, if the crime is committed by the person with the use the loose
firearm, illegal possession of loose firearm is not a separate offense. In such a case, the following rules
under Section 29 of RA No. 10591 must be observed:

1. When loose firearm is used in committing rebellion or attempted coup d’etat, the accused shall be
prosecuted for rebellion or attempted coup d’etat, while possession of loose firearm is absorbed
(Section 29, RA No. 10591);

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

3. When loose firearm is used in committing a crime with a lesser penalty, the accused shall be
prosecuted for the lesser crime but the court shall impose penalty prescribed for illegal possession of
use of loose firearm (Section 29, RA No. 10591). In this case, use of loose firearm is a qualifying
circumstance because its presence will change the imposable penalty.

4. When loose firearm is used in committing a crime with a penalty, the maximum period of which is
equal to that for illegal possession of loose firearm, the accused shall be prosecuted for the other crime
with additional penalty of prision mayor in its minimum period. In this situation, use of loose firearm is
an extraordinary circumstance similar to habitual delinquency because its presence will require the
imposition of additional penalty.

Sumpak is an improvised shotgun, which is a small arm (Section 3, par. dd). The penalty for possession
of this weapon under Section 28 of RA N. 10591 is prision mayor in its medium period. On the other
hand, the penalty for malicious mischief where the value of the damage is P60,000 is arresto mayor in
its medium and maximum periods. Since the penalty for illegal possession of loose firearm is higher
than that for malicious mischief, the accused applying Section 29 of RA No. 10591 shall be prosecuted
for malicious mischief under the Revised Penal Code with the imposable the penalty under Section 28
of RA No. 10591. Since the penalty for malicious mischief with the qualifying circumstance of use of
loose firearm under Section 28 of RA No. 10591 is prision mayor in its medium period, which has a
range from 8 years and 1 day to 10 years of imprisonment, this Court has no jurisdiction over this case
because the penalty for the crime charged exceeds six years of imprisonment.
Upon inquiry of the Court, the Public Prosecutor manifested that accused was not charged with illegal
possession of loose firearm because alleged “sumpak” was not recovered. The prosecution should be
reminded that although the loose firearm has not been recovered, use of loose firearm, whether as a
special aggravating circumstance, qualifying circumstance or extraordinary circumstance, can be
appreciated. In sum, circumstantial evidence can establish use of loose firearm in committing a crime.
In People vs. Salahuddin, G.R. No. 206291, January 18, 2016, the Supreme Court said that existence of
the firearm can be established by testimony even without the presentation of the firearm. In this case,
there is proof that accused used firearm in committing a crime (slugs were recovered from the dead
body of the victim) and he has no license to possess a firearm. The Court appreciated the special
aggravating circumstance of use of unlicensed firearm in murder.

Moreover, for purpose of determining jurisdiction, what is important is body of the information. While
the title of the Information charged the accused with malicious mischief, the body thereof alleged the
crime of qualified malicious mischief, which is punishable under RA No. 10591. Since this court has
no jurisdiction over malicious mischief with the qualifying circumstance of use of loose firearm, this
case must dismissed.

12th birth day


MB CAMPANILLA·FRIDAY, 22 JANUARY 2016

If a virgin is abducted with lewd designed by her boyfriend with her consent on her 12th birthday, there
is doubt whether the crime committed is forcible abduction or consented abduction. In Article 342 of
the Revised Penal Code, the consenting victim in forcible abduction must be under 12 years of age. In
Article 343 of the Code, the victim in consented abduction must above 12 years of age. Since the
woman is exactly 12 years of age when the abduction was committed, she is neither under nor above 12
years of age. Settled is the rule in case of doubt, the accused should be convicted of the lesser crime.
Since the penalty for consented abduction is lighter than that for forcible abduction, the accused should
be held liable for former. The phrase “above twelve (12) years of age” should be interpret as “twelve
12 years of age and above”.

NEW CONCEPT OF INSTITUTION OF


CIVIL ACTION
MB CAMPANILLA·SUNDAY, 8 MAY 2016

Civil action in general and civil action in BP Blg. 22 are distinguished as follows:

1. Civil action in general is deemed included in the institution of criminal action unless the offended
party made a reservation. Civil action in BP Blg. 22, is mandatorily included in the institution of
criminal action. Reservation is not allowed. However, civil action in general or civil action in BP Blg.
22 is not included in the institution of criminal action if the former was instituted prior to the latter;
2. Only civil action based on crime is deemed included in the institution of criminal action. In BP Blg.
22, civil action based on crime, quasi-delict, contract, quasi-contract or law are mandatorily included in
the institution of criminal action.

3. Upon death of the accused pending appeal, the criminal action and civil action based on crime will
be dismissed. Offended party must file a separate civil action based on quasi-delict, contract, quasi-
contract or law against either the executor or administrator, or the estate of the accused. The statute of
limitations on this surviving civil liability is deemed interrupted during the pendency of the criminal
case (People vs. Bayotas, G.R. No. 102007, September 2, 1994).

Upon death of the accused pending appeal in BP Blg. 22, the criminal action and civil action based on
crime will be dismissed. But the civil action based on quasi-delict, contract, quasi-contract or law,
which is included in the institution of criminal action, will not be dismissed. The court despite of the
death of the accused must determine this civil liability arising from contract, quasi-delict, etc.
(Bernardo vs. People, G.R. No. 182210, October 05, 2015).

MODIFICATION OF THE BAYOTAS


PRINCIPLE
MB CAMPANILLA·FRIDAY, 6 MAY 2016

When the death of the offender occurs after final judgment, only his criminal liability is extinguished.
However, his civil liability is not affected by his death.

When the death of the offender occurs before final judgment, his liability as to the personal penalties
and pecuniary penalties is extinguished under Article 89 of the Revised Penal Code. As a rule, Article
89 merely provides modes of criminal extinction. The modes of extinguishing civil liability are found
in the Civil Code. However, there is an exception. Under Article 89, death of offender, which occurs
before the finality of judgement, is a mode of extinguishing both criminal liability and civil liability
arising from crime.

Death of an accused pending appeal extinguishes her criminal liability and the corresponding civil
liability based solely on the offense (People vs. Bayotas, G.R. No. No. 102007, September 2, 1994).
But civil liability arising from other source of obligation such as quasi-delict, contract, quasi-contract
and law survives notwithstanding the death of accused.

Civil action involving liability arising from crime is deemed included in the institution of criminal
action. Since death of the accused pending appeal extinguishes criminal liability and civil liability
arising from crime, both criminal action and civil action involving such liabilities will be dismissed.

As a general rule, civil action involving liability arising from quasi-delict, contract, quasi-contract and
law is not deemed included in the institution of criminal action. Since death of the accused pending
appeal does not extinguish this civil liability, the private complainant can still file a separate civil
action against either the executor or administrator, or the estate of the accused. The statute of
limitations on the civil liability arising from contract, quasi-contract, quasi-delict or law is deemed
interrupted during the pendency of the criminal case (People vs. Bayotas, supra).

In violation of BP 22, the civil action involving liability arising from crime and contract is mandatorily
included in the institution of criminal action. Since death of the accused pending appeal extinguishes
criminal liability and civil liability arising from crime, both criminal action and civil action involving
such liabilities will be dismissed. But the independent civil liability based on contract (such as loan or
sale), which was also deemed instituted in the criminal action for B.P. 22, will not be dismissed. Hence,
the court despite of the death of the accused must determine his civil liability arising from contract
(Bernardo vs. People, G.R. No. 182210, October 05, 2015). In sum, the private complainant needs not
filed a separate civil action for civil liability arising from contract involving a dishonored check.

Classification of the Penalty of


Disqualification
MB CAMPANILLA·SUNDAY, 22 MAY 2016

The penalty of disqualification may be imposed as principal or accessory. Disqualification may be


absolute or special, or temporary or perpetual.

The classification of disqualification as absolute or special has something to do with the effects of this
penalty.

If disqualification is absolute, the effects of the imposition of such penalties are: (1) deprivation of the
public offices and employments with loss of retirement and other pension benefits; (2) deprivation of
the right to vote or to be elected; and (3) disqualification for the offices or public employments and for
the exercise of any of the rights mentioned.

If disqualification is special, the effects of the imposition of such penalty are: (1) deprivation of the
office, employment, profession or calling affected and (2) disqualification for holding similar offices or
employments; or (1) deprivation of the right to vote or to be elected and (2) prohibition to hold any
public office.

The classification of disqualification as perpetual or temporary as has something to do with the


duration of the penalty. Perpetual disqualification deprives or disqualifies the convict from the exercise
of rights during his lifetime. Temporary disqualification deprives or disqualifies the convict from the
exercise of rights during the term of the sentence. However, as a principal penalty its duration is
ranging from 6 years and 1 day to 12 years (Article 27).

Modification of the Dominguez principle


in relation to the Adiao case
MB CAMPANILLA·TUESDAY, 10 MAY 2016

In United States vs. Adiao, G. R. No. 13785, October 08, 1918, a customs inspector took a leather belt
from the baggage of a passenger who had just landed at the port of Manila and kept it in his office desk
where the other employees found it afterwards. The crime committed is consummated theft. Taking or
gaining control over the property with intent to appropriate consummates the crime of theft.

In U.S. vs. Dominguez, G.R. No. 17021, February 23, 1921, a salesman with intent to misappropriate
the proceeds of sale failed to surrender the money to the cashier of the complainant. He delivered them
to the cashier only after the deceit had been discovered. The crime committed is frustrated estafa
through misappropriation. Unlike in theft, gaining possession of the property would not consummate
the crime since damage is an important element of estafa. The crime is frustrated inasmuch as he
performed all the acts of execution which should produce the crime as a consequence, but which, by
reason of causes independent of his will, did not produce it, no appreciable damage having been caused
to the offended party due to the timely discovery of the acts prosecuted (1968 Bar Exam).

In the Dominguez case, the accused was just an employee of the complainant, and yet, he was
convicted of frustrated estafa through misappropriation. However, it is now a settled rule that
possession of employee over the property of the employer is physical, and thus, misappropriation
thereof is considered as taking, which constitutes the crime of theft (People v. 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, February 25, 2015; Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; Balerta
vs. People, G.R. No. 205144, November 26, 2014). Following the Adiao principle, the stage of this
crime is consummated.

FOUR KINDS OF DIVISIBLE


PENALTIES (For purpose of the 2017
Bar Exam please read)
MB CAMPANILLA·FRIDAY, 26 MAY 2017

Article 64 of RPC provides the rules on application of divisible penalty. Under this provision, the
penalty prescribed for a felony shall be applied in its proper imposable period based on the presence of
modifying circumstances.

Under Article 349 of RPC, the penalty for bigamy is prision mayor. In the absence of modifying
circumstances, prision mayor 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 the indeterminate
sentence should be within the range of prision correccional, the penalty next lower than that prescribed
for the offense, which is from 6 months and 1 day to 6 years. Accordingly, the indeterminate sentence
of 2 years and 4 months of prision 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, 2014, Bersamin).

Under Article 249 of RPC, the penalty for homicide is reclusion temporal. In the absence of any
modifying circumstances, 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 Article 64, within the limits of the
medium period of reclusion temporal, the courts shall determine the extent of the penalty according to
the number and nature of the aggravating and mitigating circumstances and the greater or lesser
extent of the evil produced by the crime. Thus, the 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, the court should impose the lowest penalty
of the medium period of reclusion temporal, and that is, 14 years, 8 months. Since ISLAW is
applicable, 14 years, 8 months shall be considered as the maximum penalty while the minimum penalty
shall be fixed within the limits of prision mayor, which ranges from 6 years and 1 day to 12 years.
Hence, the accused is sentenced to suffer 10 years of prision mayor as minimum indeterminate penalty
to 14 years, 8 months of reclusion temporal as maximum penalty (Ladines vs. People, G.R. No.
167333, January 11, 2016, Bersamin).

There are four kinds of divisible penalty, which are governed by Article 64, to wit: (1) penalty
composed of three periods fixed in accordance with Article 76; (2) penalty not composed of three
periods computed in accordance with Article 65; (3) complex penalty under Article 77, par. 1; and (4)
penalty without specific legal form under Article 77, par. 2.

1. Penalty containing three periods – Article 76 of RPC expressly fixed the range of the period for
reclusion temporal, prision mayor, temporary disqualification, prision correccional, destierro,
suspension, arresto mayor, and arresto menor. To find the range of the periods of any of the afore-said
penalties, one will simply read Article 76. If the crime committed is homicide and there is one
mitigating circumstance of confession, the prescribed penalty of reclusion temporal shall be 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 12 years and 1 day to 14 years and 8 months. Within the range of
this period, the maximum indeterminate penalty shall be fixed.

The range of the minimum, medium and maximum periods fixed in accordance with Article 76 is one-
third equal portion of the respective penalties except arresto mayor. Under Article 76, the minimum
period of arresto mayor ranges from 1 month and 1 day to 2 months; medium period ranges from 2
month and 1 day to 4 months; and maximum period ranges from 4 months and 1 day to 6 months.
Hence, the time included in the duration of the minimum period of arresto mayor is only one month
while that of the medium and maximum is two months.

2. Penalty not composed of three periods - Penalties with divisible duration, the periods of which are
not expressly mentioned in Article 76 are called “penalties not composed of three periods”; since
Article 76 has not fixed the duration of their periods, they must be computed in accordance with Article
65. Under this provision, the time included in the duration of penalty shall be divided into three equal
portions and periods shall be formed from each portion.

The penalty for malversation under paragraph 2 of Article 217 of RPC is prision mayor in its minimum
and medium period. The range of the three periods of this penalty is not found in Article 76.
Considering that this penalty is not composed of three periods, the time included in the penalty
prescribed should be divided into three equal portions, which each portion forming one period,
pursuant to Article 65 (Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin).
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 in the duration,” deduct “one day” and the lower limit of the
prescribed penalty from its upper limit.

10 years -------------------upper limit

- 6 years and 1 day ------- lower limit

- 1 day

--------------------------

4 years ------- time included in the duration of penalty

Four years, which is “the time included in the duration,” shall be divided into three equal portions.

4 years

÷3

-------------------------

1 year and 4 months --------- one third portion of the penalty

The minimum, medium and maximum periods shall be formed out the 3 equal portions of the penalty.
The time included in the duration of each period is 1 year and 4 months.

6 years

+1 year and 4 months

----------------------------

7 years and 4 months

+ 1 year and 4 months

----------------------------

8 years and 8 months

+1 year and 4 months

-----------------------------

10 years

Thus, the minimum period of the prescribed penalty of “prision mayor in its minimum and medium
periods” ranges from 6 years and 1 day to 7 years and 4 months; its medium period ranges from 7
years, 4 months and 1 day to 8 years and 8 months; its maximum period rages from 8 years, 8 months
and 1 day to 10 years (Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin).
3. Complex penalty – Complex penalty is composed of three distinct penalties. The periods of
complex penalty is formed in accordance with Article 77, par. 1. Applying this provision, each of the
components of the complex penalty shall form a period; the lightest of them shall be the minimum, the
next the medium, and the most severe the maximum period.

Reclusion temporal to death prescribed for treason committed 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 components, periods shall be formed
in accordance with Article 77, par. 1. Thus, reclusion temporal, which is the lightest of the three, shall
be minimum period of penalty of reclusion temporal to death; reclusion perpetua, which is the next
penalty, shall be the medium period; death penalty, which is the most severe, shall be the maximum
period. Thus, in the absence of modifying circumstances, reclusion temporal to death prescribed for
treason shall be applied in its medium period, and that is, reclusion perpetua.

Prision correccional in its maximum period to prision mayor in its medium period prescribed for
simple robbery under Article 294 of RPC is a complex penalty since it composed of three distinct
penalties. Thus, prision correccional in its maximum period, which is the lightest of the three, shall be
minimum period of this prescribed penalty. Prision mayor in its minimum period, which is the next
penalty, shall be the medium period. Prision mayor in its medium period, which is the most severe,
shall be the maximum period. In sum, prision correccional in its maximum period to prision mayor in
its medium period prescribed for robbery shall be broken down as follows:

Minimum: Prision correccional in its maximum period(4 years, 2 months & 1 day to 6 years)

Medium: Prision mayor in its minimum period (6 years & 1 day to 8 years)

Maximum: Prision mayor in its medium period (8 years & 1 day to 10 years)

See: People vs. Dela Cruz, G.R. No. 168173, December 24, 2008, En Banc, People vs. Barrientos, G.R.
No. 119835, January 28, 1998, En Banc, People vs. Castillo, G.R. No. L-11793, May 19, 1961, En
Banc, People vs. Diamante, G.R. No. 180992, September 04, 2009, and People vs. Lumiwan, G.R.
Nos. 122753-56, September 07, 1998.

Reclusion temporal in its medium period to reclusion perpetua prescribed for sexual abuse under
Section 5 (b) of RA No. 7610 is a complex penalty since it composed of three distinct penalties.
Applying Article 77, par. 1, this complex penalty can be broken down as follows:

Minimum: Reclusion temporal in its medium period

(14 years, 8 months and 1 day to 17 years and 4 months)

Medium: Reclusion temporal in its maximum period

(17 years, 4 months and 1 day to 20 years)

Maximum: Reclusion perpetua


See: People vs. Morante, G.R. No. 187732, November 28, 2012

4. Penalty without specific legal form – Reclusion temporal to


reclusion perpetua prescribed for mutilation under Article 262 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 76. This penalty cannot be divided into three equal portions
in accordance with Article 65 since it has an indivisible component,
and that, is reclusion perpetua. It is not a complex penalty under
Article 77, par. 1 since it merely composed of two distinct
penalties. Thus, its periods shall be determined in accordance with
Article 77, par. 2, which provides that the periods shall be
distributed, applying for analogy the prescribed rules. Applying
Article 77, par. 1 by analogy, the maximum period shall be formed
out of the most severe penalty, and that is, reclusion perpetua.
Applying Article 65 by analogy, the duration of reclusion temporal
shall be divided into two equal portions and minimum and medium
periods shall be formed from each portion. Applying Article 77, par.
2, reclusion temporal to reclusion perpetua is broken down as
follows:

Minimum: Lower half of reclusion temporal (12 years and 1 day to 16 years)

Medium: Higher half of reclusion temporal (16 years and 1 day to 20 years)

Maximum: Reclusion perpetua

See: People vs. Macabando, G.R. No. 188708, July 31, 2013; People vs. Romero, G. R. No. 112985,
April 21, 1999; Gonzales vs. People, G.R. No. 159950, February 12, 2007; and People vs. Oliva, G.R.
No. 122110, September 26, 2000

Reclusion temporal in its maximum period to reclusion perpetua prescribed for malversation under
Article 217 is a penalty without specific form. The duration of its periods is not fixed by Article 76.
This penalty cannot be divided into three equal portions in accordance with Article 65 since reclusion
perpetua component is not divisible. It is not a complex penalty under Article 77, par. 1 since it merely
composed of two distinct penalties. Thus, its periods shall be determined in accordance with Article 77,
par. 2. Applying this provision, the maximum period shall be 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 formed from each portion.
In sum, reclusion temporal in its maximum period to reclusion perpetua is broken down as follows:
Minimum: Lower half of reclusion temporal in its maximum period (17 years, 4 months and 1 day to
18 years and 8 months )

Medium: higher half of reclusion temporal in its maximum period (18 years, 8 months and 1 day to 20
years)

Maximum: Reclusion perpetua

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. 162489, June 17, 2015, Bersamin.

THERE IS NO SUCH THING AS


ATTEMPTED CARNAPPING
MB CAMPANILLA·THURSDAY, 8 JUNE 2017

Inability to dispose the stolen property is not an element of theft. Unlawful taking is the element which
produces the felony in its consummated stage. Without unlawful taking, the offense could only be
attempted theft, if at all. Thus, theft cannot have a frustrated stage (Valenzuela vs. People, G. R. No.
160188, June 21, 2007).

With the Valenzuela principle, if the offender gained possession, physically or constructively, over the
property of another with intent to gain, theft is consummated; on the other hand, if the offender failed
to gain possession over such property due to cause other than his spontaneous desistance, but he
performed an act showing a clear intention to take the property, the crime of theft is at the attempted
stage.

In People v. De la Cruz, C.A., 43 O.G. 3202, the accused was found inside a parked jeep of Captain
Parker by an American MP. The jeep’s padlock had been forced open and lying between the front seats
and the gearshift was an iron bar. Captain Parker was then inside a theatre. It was held that the accused
already commenced to carry out his felonious intention, and that if he did not perform all the acts of
execution which should have produced the crime of theft, it was because of the timely arrival of the
MP. The overt acts of the accused consisted in forcing open the padlock locking the gearshift to a ring
attached to the dashboard which was placed there to avoid the jeep from being stolen. The crime
committed is only attempted theft.

The case of De la Cruz was published in the Official Gazette in 1946. At the time, taking of motor
vehicle is neither qualified theft under Article 308 in relation to Article 310 of the Revised Penal Code
nor carnapping.

On June 7, 1947, RA No. 120 amended Article 310 of the Code making taking of motor vehicle a
qualifying circumstance. Hence, the attempted theft in the De la Cruz case should be read as
“attempted qualified theft.”
In August 26, 1972, Congress enacted RA No. 6539, which punished carnapping, the actus reus of
which is the taking of motor vehicle with intent to gain without consent of the owner, by means of
violence or intimidation or using force upon thing. This carnapping law did not adopt the technical
nomenclature of the penalties of the Revised Penal Code. For example, the penalty for simple
carnapping is an imprisonment of not less than 14 years and 8 months but not more than 17 years and 4
months. This is a penalty under the American criminal system. The colonial influence of the American
policy and principles over the legislators was still strong in 1972.

Since RA No. 6539 did not adopt the technical nomenclature of the penalty of the Revised Penal Code,
the intention of Congress is not to adopt the penal system of the Code including the rules on graduation
of penalty and modifying circumstances. Under Article 51 of the Code, if the felony is attempted, the
penalty shall be reduced to two degrees lower. This provision cannot be applied to carnapping since
penalty of imprisonment of “not less than 14 years and 8 months but not more than 17 years” cannot be
reduced to two degrees lower. With the non-applicability of the rule on graduation, an accused cannot
be convicted of attempted carnapping (see: Pecho vs. Sandiganbayan, G.R. No. 111399, November 14,
1994).

In December 13, 2003, Congress introduced a confusing penal rule for carnapping by amending RA
No. 6539 through RA No. 7659. While this amendatory law had maintained the American penalty for
carnapping, it prescribed reclusion perpetua to death for carnapping with homicide or rape. In sum, RA
No. 7649 had adopted two penalty systems for carnapping, Spanish penal system and American penal
system. If the crime committed is simple carnapping, the penal provisions under the Revised Penal
Code would not apply. On the other hand, if the crime committed is special complex crime of
carnapping with homicide or rape, such provisions under the Code would be applicable.

In July 17, 2016, RA No. 10883, which repealed RA No. 6539, was enacted. Carnapping is now
punishable under this new law. RA No. 10883 has not adopted the technical nomenclature of the
penalties of the Revised Penal Code whether the crime is simple carnapping or carnapping with
homicide or rape. In other words, this law sponsored by Senator Grace Poe has adopted the American
penal system.

Since RA No. 10883 did not borrow the penalties from the Revised Penal Code, Article 6 in relation to
Article 51 of the Code on attempted felony cannot be applied for carnapping. Thus, the crime of
carnapping has no attempted stage. In sum, if an incident similar of the Del la Cruz case happens, the
offender should be prosecuted and convicted of the crime of “attempted qualified theft.”

Post-bigamy declaration of nullity of


marriage
MB CAMPANILLA·FRIDAY, 26 MAY 2017

After the consummation of the crime of bigamy, declaration of nullity of first marriage and/or second
marriage is not a defense on the following grounds:
First ground - After the consummation of bigamy, subsequent declaration of nullity of the first and/or
the second marriage is not a defense since it is not listed as a mode of extinguishing criminal liability in
Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009).

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

Second ground - To make declaration of nullity of first marriage and/or second marriage after the
consummation of the crime of bigamy as a defense would render the State’s penal laws on bigamy
completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed
in some manner, and to thus escape liability for bigamy (Tenebro vs. The Honorable Court of Appeals,
G.R. No. 150758, February 18, 2004; Walter vs. People, GR No. 183805, July 03, 2013).

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

Article 40 of the Family Code is only applicable if what is involved is declaration of nullity of the first
marriage. Hence, if what is involved is post-bigamy declaration of nullity of the first marriage, this is
not a defense because of the first, second and third grounds. If what is involved is post-bigamy
declaration of nullity of the second marriage, this is not a defense because of the first and second
grounds.

Post-bigamy declaration of nullity of the first or second marriage is not a defense whether the ground
for nullity is psychological incapacity (Mercado vs. Tan, G.R. No. 137110, August 1, 2000) or lack of
license and affidavit of cohabitation (Lasanas vs. People, G.R. No. 159031, June 23, 2014, Bersamin)
or even though the declaration is obtained before the filing of the complaint for bigamy (People vs.
Odtuhan, GR No. 191566, July 17, 2013).

The accused cannot use the voidness of the second marriage as a defense in bigamy because she
fraudulently secured a certificate of marriage, and that is presenting a falsified affidavit of cohabitation
instead of marriage license (Santiago vs. People, G.R. No. 200233, July 15, 2015).

Exceptions:
1. The second marriage was celebrated one day before the issuance of the marriage license. Accused
can use the voidness of the second marriage as a defense in bigamy. In this case, accused did not cause
the falsification of public documents in order to contract a second marriage. He did not fraudulently
secure a Certificate of Marriage, and later used this criminal act as basis for seeking her exculpation.
The crime committed is not bigamy under Article 349 (Santiago vs. People, supra; People v. De Lara, 3
No. 12583-R, 14 February 1955, 51 O.G. 4079) but marriage contracted against the provisions of the
law under Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955).

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

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

X is liable for bigamy involving the second marriage on the basis of his first marriage because the first
was existing when the contracted the second.

X is not liable for bigamy involving the third marriage on the basis of the first marriage since the first
has already been extinguished by reason of death of the first wife when he contracted the third.

X is not liable for bigamy involving the third marriage on the basis of the second marriage since the
second is null and void for being a bigamous marriage.

Other view: X is liable for bigamy involving the third marriage on the basis of the second marriage.
Although the second is null and void for being a bigamous marriage, X should have first caused the
declaration of nullity of the second marriage for being bigamous before contracting a third marriage.

Putang Ina Principle


MB CAMPANILLA·TUESDAY, 7 FEBRUARY 2017

The words "putang ina mo" are common expression in the dialect that is often employed, not really to
slander but rather to express anger or displeasure. It is seldom, if ever, taken in its literal sense by the
hearer, that is, as a reflection on the virtues of a mother (Reyes vs. People, G.R. Nos. L-21528 and L-
21529, March 28, 1969). Thus, the statement “Putang ina mo! Limang daan na ba ito?” made by the
accused cannot be considered as slanderous (Martinez vs. People, G.R. No. 198694, February 13,
2013).

Same as the words “fuck”, “son of a bitch” or “motherfucker” in America, “hijo de puta” in Spain and,
“bakero” in Japan, “putang ina” is an expletive expression of Filipinos, which cannot be considered as
a source of criminality on all occasions. It is not an exaggeration to state that numerosity of Filipinos
including the President are expressing the words “putang ina” multiple times on a daily basis.
Obviously, the minds of these Filipinos, who are instinctively using “putang ina” as part of their
language, are not criminal.

However, if the statement “putang ina” is made not only to express hate or displeasure but also to
defame or insult a person in front of several persons, the crime of simple slander is committed. For
example, an accused, who shouted "putang ina mo Atty. Escolango. Napakawalanghiya mo!" at the
complainant, a lawyer and candidate for vice-mayor, while the latter was conversing with his political
leaders, is liable for simple slander (Pader vs. People, G.R. No. 139157, February 8, 2000). An
accused, who pointed a dirty finger at vice-mayor in the municipal hall in front of several persons, is
liable for simple slander by deed. A dirty finger ordinarily connotes the phrase "fuck you," which is
similar to the expression "puta" or "putang ina mo," in local parlance. While such act is an expression
of anger and displeasure, it cast dishonor, discredit or contempt upon complainant since she is a lady
and a vice-mayor, and it was made in front of several persons (People vs. Villanueva, G.R. No.
160351, April 10, 2006).

But if the words “putang ina” is accompanied with the statement “papatayin kita”, the crime
committed is threat. The utterance “putang ina,” is not a separate crime of slander since it is merely
made to make the threat more emphatic. In sum, the statement “putang ina” shall be considered as part
of the threat (Reyes vs. People, supra). If the statement "putang ina, bullshit" is accompanied with
banging a chair and choking of the complainant, who is a lady, the crime committed is serious slander
by deed. The cuss words shall be considered as part of the crime of serious slander by deed (Mari v.
Court of Appeals, G.R. No. 127694, May 31, 2000).

What is the crime committed in the


Resorts World incident?
MB CAMPANILLA·FRIDAY, 2 JUNE 2017

Burning the building or property is not always arson. The motive of the accused should be considered
to determine the crime committed.

Intent to burn – If the main objective is the burning of the building or edifice, but death results by
reason or on the occasion of arson, the crime is special complex crime of destructive arson with
homicide (People vs. Villacorta, G.R. No. 172468, October 15, 2008) or simple arson with homicide
under PD No. 532 if what is involved is house or personal property (People vs. Malngang G. R. No.
170470, September 26, 2006, En Banc).

Intent to kill – If the main objective is to kill a particular person who may be in a building or edifice,
when fire is resorted to as the means to accomplish such goal the crime committed is murder only.
Murder qualified by means of fire absorbs the crime of arson since the latter is an inherent means to
commit the former. If the objective is to kill, and in fact the offender has already done so, and arson is
resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes of
either homicide or murder, and destructive arson (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
Intent to commit robbery – If the main objective is to commit robbery, and homicide and arson are
perpetrated by reason or on occasion thereof, the crime committed is robbery with homicide while
arson shall be integrated into this special complex crime. Regardless of the number of deaths, there is
only one crime, and that is, robbery with homicide (People vs. Jugueta, G.R. No. 202124, April 05,
2016). However, by means of fire shall be considered as an ordinary aggravating circumstance (U.S.
vs. Bulfa, G.R. No. 8468, August 20, 1913).

Intent to Coerce the government - If the main objective is to coerce the government to give in to an
unlawful demand, and the murder, arson or robbery with homicide creates an extraodinary and
widespread panic to the populace, the crime committed is terrorism under RA No. 9372.

Nelmida principle
MB CAMPANILLA·SUNDAY, 7 MAY 2017

In People vs. Lawas, L-7618-20, June 30, 1955, if several accused killed several victims pursuant to a
single criminal impulse to obey the order to fire their guns at the victims, they shall be held liable for
compound crime of multiple murders. The Lawas principle should only be applied in a case where (1)
there is no conspiracy (People vs. Hon. Pineda, G.R. No. L-26222, July 21, 1967) and (2) it is
impossible to ascertain the number of deaths caused by each accused. Lawas doctrine is more of an
exception than a general rule (People vs. Remollino, G.R. No. L-14008, September 30, 1960). To apply
Article 48 on compound crime, there must be singularity of criminal act; singularity of criminal
impulse is not written into the law (People vs. Pineda, G.R. No. L-26222, July 21, 1967). In Lawas
case, the Supreme Court was merely forced to apply Article 48 of the Revised Penal Code because of
the impossibility of ascertaining the number of persons killed by each accused (People vs. Nelmida,
G.R. No. 184500, September 11, 2012). Thus, the Lawas doctrine should not be applied if there is
conspiracy since the number of victims actually killed by each conspirator is not anymore material
(People vs. Elarcosa, G.R. No. 186539, June 29, 2010).

In People vs. Abella, G.R. No. L-32205, August 31, 1979, if several prisoners killed fellow prisoners
pursuant to a single criminal purpose to take revenge, they shall be held liable for compound crime of
multiple murders. To apply the Lawas principle, it is important that there is no conspiracy. However, to
apply the Abella, there must be conspiracy that animates several persons to commit crimes under a
single criminal purpose. The “single purpose rule” was adopted in consideration of the plight of the
prisoners; hence, it is only applicable if the offenders committed the crimes in prison against their
fellow prisoners (People vs. Pincalin, G.R. No. L-38755, January 22, 1981).

However, People vs. Sanidad, G.R. No. 146099, April 30, 2003, Per Curiam, the Supreme Court
applied Lawas and the Abella although there is conspiracy and accused and victims are not prisoners.
In the 2007 Revised Penal Code written by Marlo Campanilla, the author made the following opinion
regarding the case of People vs. Sanidad:

“The principle in Sanidad case should be re-examined. The Supreme Court in Sanidad case applied the
Lawas principle even though there is conspiracy and the Abbella principle even though the
conspirators are not prisoners. This is contrary to the conspiracy principle that the in conspiracy the
act of one is the act of all and all conspirators are liable for death of the victims regardless of who
inflicted the mortal wounds.”

In People vs. Nelmida, G.R. No. 184500, September 11, 2012, the Supreme Court, En Banc stated:

“The reliance in Sanidad, on Lawas and Abella is incorrect.

The application of the Abella doctrine, has already been clarified in Pincalin, thus: where several
killings on the same occasion were perpetrated, but not involving prisoners, a different rule may be
applied, that is to say, the killings would be treated as separate offenses. Since in Sanidad, the killings
did not involve prisoners or it was not a case of prisoners killing fellow prisoners. As such, Abella
would not apply.

To repeat, in Lawas, this Court was merely forced to apply Article 48 of the Revised Penal Code
because of the impossibility of ascertaining the number of persons killed by each accused. Since
conspiracy was not proven therein, joint criminal responsibility could not be attributed to the accused.
Each accused could not be held liable for separate crimes because of lack of clear evidence showing
the number of persons actually killed by each of them.

Our repeated ruling is that in conspiracy, the act of one is the act of all. It is as though each one
performed the act of each one of the conspirators. Each one is criminally responsible for each one of
the deaths and injuries of the several victims. The severalty of the acts prevents the application of
Article 48. The applicability of Article 48 depends upon the singularity of the act, thus the definitional
phrase "a single act constitutes two or more grave or less grave felonies."”

In footnote numbers 84 and 101, the Supreme Court cited “Campanilla, The Revised Penal Code (Book
One) 2007, pp. 916-917”.

JUSTIFICATION FOR IMPOSING THE


HIGHEST PENALTY
MB CAMPANILLA·WEDNESDAY, 17 MAY 2017

The penalty for homicide is reclusion temporal. In the absence of any modifying circumstances,
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 Article 64 of RPC, within the limits of the medium period of
reclusion temporal, the courts shall determine the extent of the penalty according to the number and
nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil
produced by the crime. Thus, the 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, the court should impose the lowest penalty of the medium
period of reclusion temporal, and that is, 14 years, 8 months and 1 day. Since ISLAW is applicable, 14
years, 8 months shall be considered as the maximum penalty while the minimum penalty shall be fixed
within the limits of prision mayor, which ranges from 6 years and 1 day to 12 years. Hence, the
accused is sentenced to suffer 10 years of prision mayor as minimum indeterminate penalty to 14 years,
8 months and 1 day of reclusion temporal as maximum penalty (Ladines vs. People, G.R. No. 167333,
January 11, 2016, Justice Bersamin)

Complex crime of simple seduction


through illegal marriage
MB CAMPANILLA·THURSDAY, 30 MARCH 2017

In U.S. vs. Hernandez, G.R. No. L-9405 December 24, 1914, accused who seduced a 15-year-old girl
to live with him by procuring the performance of a fictitious marriage ceremony with the help of
Bautista, who pretended to be a Protestant minister, was held liable for the complex crime proper of
simple seduction through usurpation of official function. Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor (1985 Bar Exam).

The case of Hernandez was decided prior to the effectivity of the Revised Penal Code. At that time, a
religious official such as a bishop is a person in authority within the purview of the Old Penal Code
(U.S. vs. Smith, G.R. No. 14057, January 22, 1919). However, the Revised Penal Code was passed in
1932 during the American regime. Thus, in crafting Article 152 of the Revised Penal Code, the Code
committee considered American principles such as the doctrine of separation of State and Church, and
the non-establishment rule. In view thereof, religious officers were not listed in Article 152 as persons
in authority.

Since a priest is not anymore a person in authority, usurping the function of a priest by solemnizing
marriage is not anymore usurpation of function under Article 177 of the Revised Penal Code but illegal
marriage qualified by circumstance of by means of fraud under Article 150. At present, the the facts in
the Hernadez case constitute complex crime simple seduction through illegal marriage.

STAGES OF CRIMINAL REVOLUTION


MB CAMPANILLA·SATURDAY, 29 APRIL 2017

Joining Congress of Labor Organization, which has communistic tendencies, is not a crime (People vs.
Hernandez, G.R. No. L-6025, May 30, 1964).

Joining Communist Party of the Philippines (CPP), which is organized to overthrow the government,
does not constitute rebellion (Crispin Beltran vs. People, G.R. No. 175013, June 1, 2007) or conspiracy
to commit rebellion (People vs. Hernandez, supra). However, this is constitutive of the crime of illegal
association (People vs. Evangelista, G.R. No. 36278, October 26, 1932; U.S. vs. Sadian, G.R. No.
1513, February 12, 1904; People vs. Alipio, CA-G.R. No. 11260-R, November 29, 1956). But Joining
Makapili, which is an association of Filipino traitors organized to render military aid to the Japanese
Army in the Philippines during World War II is evidence of both adherence to the enemy and giving
him aid and comfort. Hence, members are liable for treason (People vs. Adriano, G.R. No. L-477, June
30, 1947).

Joining CPP is proof that he agreed to commit rebellion. Committing further acts showing that the
member is decided to commit rebellion will make him liable for conspiracy to commit rebellion. The
following acts show that a CPP member agreed and decided to commit rebellion: (1) appointing
military officers, recruiting, attending meeting and soliciting funds from the populace (U.S. vs.
Vergara, G.R. No. 1543, March 19, 1904), making revolutionary speeches, signing documents, which
are revolutionary in character, and possession of commissions appointing them officers in his military
organization (U.S. vs. Cabola, G.R. No. 4663, October 9, 1909) and accepting the appointment as an
officer of the rebel forces and assuming all the obligations implied by such acceptance (U.S. vs.
Bautista, G.R. No. 2189, November 3, 1906).

Joining CPP, which is already engaged in actual armed uprising against the government, shows not
only agreement to commit rebellion but also decision to commit it. Thus, such membership, even if
there is nothing more, renders the member guilty of conspiracy to commit rebellion under Article 136
(People vs. Hernandez, G.R. No. L-6025, May 30, 1964).

If a CPP member takes to the field and joins in the rebellion or uprising, he commits rebellion (People
vs. Hernandez, supra; U.S. vs. Baldello, G.R. No. 1330, March 28, 1904). If a member of the NPA
sparrow unit killed a police officer in furtherance of rebellion, the crime committed is rebellion (People
v. Dasig, G.R. No. 100231. April 28, 1993).

According to CA Justice Luis Reyes, actual clash of arms with the forces of the government is not
necessary to convict the accused, who is in conspiracy with others actually taking arms against the
government. Those merely acting as couriers or spies for the rebels are also guilty of rebellion.

If the rebels are adhering to a foreign enemy in levying war against the government, the crime
committed is treason (People vs. Alitagtag, G.R. No. l-294, August 30, 1947).

Fair report vs. Fair comment


MB CAMPANILLA·TUESDAY, 14 MARCH 2017

The differences between fair and true report under Article 354 of RPC, and fair comment under the
Sulivan vs. New York Times doctrine as privileged communications are as follows:

(1) In fair and true report, the accused makes a report on official proceedings, which are not
confidential in nature and the function-related acts performed by public officers without any comments
or remarks (People vs. Rico, 3 C.A. Rep. 225); on the other hand, in fair comment, the accused is
making a comment on the function-related acts performed by public officers or public figures;

(2) In fair and true report, the report involving defamatory statement must be true (Macleod vs.
Philippine Publishing Company, G.R. No. 4841, January 08, 1909); in fair comment, the defamatory
imputation in the commentary may be false but the accused has no knowledge that it is false and has
not recklessly disregarded to know whether it is false or not.

Only false statements made with the high degree of awareness of their probable falsity demanded by
New York Times may be the subject of either civil or criminal sanctions (Flor vs. People, G.R. No.
139987, March 31, 2005).
(3) Fair and true report and fair comment are qualified privileged communications. Hence, the accused
can still be held liable for libel if actual malice is shown. In fair and true report, actual malice (Article
362) can be established by showing that the report was not made in good faith (Article 354). In fair
comment, actual malice can be established by showing that comment was made with knowledge that it
was false or with reckless disregard of whether it was false or not (Guingguing vs. the Honorable
Court of Appeals, G.R. No. 128959, September 30, 2005).

Error, misstatement or in accuracy in news commentaries on function related acts of public officer does
not prove actual malice. Mistakes are inevitable in the exercise of freedom of expression and press
(Borjal vs. CA, G.R. No. 126466, January 14, 1999).

Constitutionality of legislatively making


carnapping non-bailable
MB CAMPANILLA·FRIDAY, 24 MARCH 2017

Under Section 3 of RA No. 10883, simple carnapping or carnapping by means of violence or


intimidation or by using force upon thing when the evidence of guilt is strong is not bailable. However,
under Article III, Section 13, of Constitution, non-bailable offenses must be punishable by reclusion
perpetua.

Section 3 of RA No. 10883, the penalty for simple carnapping is imprisonment for not less than 20
years and 1 day but not more than 30 years while that for carnapping by means of violence or
intimidation or by using force upon thing is imprisonment for not less than 30 years and 1 day but not
more than 40 years. These penalties are subject to the second rule of the Islaw. For example, if the
crime is simple carnapping, the maximum penalty under the Islaw must not exceed 30 years while the
minimum shall not be less than 20 years and 1 day. Thus, the court can sentence the accused to suffer
23 years of imprisonment as minimum penalty to 27 years as maximum penalty. Can you consider this
indeterminate penalty for simple carnapping as reclusion perpetua for purpose of applying the
constitutional provision of non-bailability of an offense?

Reclusion perpetua is an indivisible penalty (People vs. Lucas, G.R. No. 108172-73, January 9, 1995).
The court must impose this penalty as it is (Article 63 of the Revised Penal Code). Although under
Article 27 of the Revised Penal Code, this penalty has a range from 20 years and 1 day to 40 years, the
court cannot sentence the accused to suffer 35 years of reclusion perpetua. To fix the penalty within the
range of this penalty will go against its character as an indivisible penalty. That is the reason why in
People vs. Castillo and Castillo, G.R. No. 118912, May 28, 2004, the Supreme Court said that ISLAW,
which required the fixing of minimum and maximum penalty, is not applicable to the penalty of
reclusion perpetua since it is an indivisible penalty. Thus, 23 to 27 years of imprisonment for simple
carnapping fixed in accordance with the ISLAW cannot be treated as reclusion perpetua. It is therefore
submitted that Section 3 of RA No. 10883 making simple carnapping or carnapping by means of
violence or intimidation or by using force upon thing non-bailable is unconstitutional.
Graduation of Death Penalty
MB CAMPANILLA·THURSDAY, 16 FEBRUARY 2017

There are two views on graduation of the penalty of death.

Under the first view, death shall be excluded from the scale of graduated penalties under Article 71 of
the Revised Penal Code pursuant to RA No. 9346 (People vs. Bon, G.R. No. 166401, 30 October 2006;
People vs. Abellera, G.R. No. 166617, July 03, 2007; People vs. Brioso, G.R. No. 182517, March 13,
2009). For example, the accused, a minor is convicted of qualified rape. The penalty for qualified rape
is death. However, RA No. 9346 has excluded death penalty from the scale of graduated penalties in
Article 71. Hence, reclusion perpetua, which is now the highest penalty, shall be considered for
purposes of graduation. Since the privilege mitigating circumstance of minor is present, reclusion
perpetua shall be reduced to one degree lower, and that is reclusion temporal.

Under the second view, for purposes of graduating penalty, the penalty of death is still the penalty to be
reckoned with. In sum, death penalty is not excluded from the scale of graduated penalties (People vs.
Sarcia, G.R. No. 169641, September 10 2009; People vs. Arpon, G.R. No. 183563, December 14,
2011; People vs. Gulpe, G.R. No. 126280, March 30, 2004; People vs. Quitorio, G.R. No. 116765,
January 28, 1998; People vs Madali, G.R. No. 67803-04, July 30, 1990). For example, the accused, a
minor, is convicted of qualified rape. The penalty for qualified rape is death. RA No. 9346 has not
excluded death penalty from the scale of graduated penalties in Article 71. In sum, RA No. 9346 did
not amend the RPC, but it merely prohibits the imposition of penalty. Death penalty is still listed as
number one in the scale of graduated penalties. Hence, death shall be considered for purposes of
graduation. Since the privilege mitigating circumstance of minor is present, death penalty shall be
reduced to one degree lower, and that is reclusion perpetua.

I submitted my manuscript entitled “the Revised Penal Code to 2007 Edition” to Rex Publishing in
2006. In the said manuscript, I cited a 1990 case of Madali (second view) in explaining how to
graduate death penalty. A few months after I submitted my manuscript, People vs. Bon (first view)
abandoned Madali case. After two years, Sarcia (second view) case abandoned the Bon rule. In People
vs. Jacinto, G.R. No. 182239, March 16, 2011, the Supreme Court expressly rejected the application of
the Bon principle, and reaffirmed the Sarcia case. However, in People vs. Gambao, G.R. No. 172707,
October 1, 2013, the Supreme Court, En Banc, reverted back to the Bon doctrine. In my 2016 Criminal
Law Reviewer, I explained that the controlling rule is Bon case since it was reaffirmed by the Supreme
Court En Banc in Gambao case. However, in People vs. Deliola, G.R. No. 200157, August 31, 2016,
the Supreme Court, Third Division said that the controlling jurisprudence is the Sarcia case.

THE HARDEST RULE IN CRIMINAL


LAW (Please don’t read this)
MB CAMPANILLA·SUNDAY, 26 FEBRUARY 2017

The most complicated rule on imposition of penalty is that for qualified theft under Article 309 in
relation to Article 310 of the Revised Penal Code. The reason why this rule is “numero uno” in the list
of hardest principles in criminal law is the confluence of incremental penalty rule under Article 309
and graduation rule under Article 310. Because of the failure of legislation to provide a formula on how
to apply this complicated penal system for qualified theft, different methods were adopted by the
Supreme Court in imposing penalty for qualified theft.

Under the Indeterminate Sentence Law, the court in sentencing the accused must fix maximum penalty
and minimum penalty.

The minimum penalty is fixed within the range of the penalty, which is one degree lower than the
principal penalty. The maximum penalty is that penalty actually imposed in accordance with the
provisions of the Revised Penal Code such the incremental penalty rule under Article 309 and
graduation rule under Article 310 (People vs. Temporada, G.R. No. 173473, December 17, 2008).

Under the incremental penalty rule or Article 309, the prescribed penalty for theft if the value of the
thing stolen is more than P12,000 is prision mayor in its minimum and medium periods. This
prescribed penalty shall be applied in its maximum period if the value of the thing stolen exceeds
22,000 pesos. The maximum period of the prescribed penalty is called imposable penalty. Applying
Article 64 (6) of the Revised Penal Code, the courts shall determine the extent of the penalty within the
limits of imposable party. Thus, the court can fix the principal penalty at 10 years of imprisonment. But
for each P10,000 in excess of P22,000, an additional penalty of one year shall be add to penalty of 10
years fixed in accordance with Article 62 (6). This is called incremental penalty. The combination of
the principal penalty and incremental penalty must not exceed 20 years of imprisonment. For purpose
of simplicity, the combination of the principal penalty and incremental penalty shall be called fixed
penalty.

Under graduation rule or Article 310, the crime of qualified theft shall be punished by the penalties
next higher by two degrees than “those respectively specified” in Article 309. There are two views on
whether the penalty specified in Article 309, which shall be increased by two degrees in accordance
with Article 310, pertains to the prescribed penalty or fixed penalty.

FIRST VIEW – The penalty specified in Article 309, which shall be increased by two degrees in
accordance with Article 310, pertains to the fixed penalty (e.g. 20 years of reclusion temporal).

For example, X is found guilty of qualified theft where the value of the property stolen is P222,000.
The court can fix the principal penalty at 10 years, which is within the range of the maximum period of
the prescribed penalty. The incremental penalty is 20 years because there is an excess of P200,000 on
top of 22,000. Since combining the principal penalty and incremental penalty is 30 years, the penalty
shall be fixed at 20 years. This fixed penalty of 20 years of reclusion temporal shall be graduated two
degrees higher in accordance with Article 310, which is reclusion perpetua (People vs. Zapanta, G.R.
No. 170863, March 20, 2013, People vs. Tanchanco, G.R. No. 177761, April 18, 2012, People vs.
Mercado, G.R. No. 143676, February 19, 2003, People vs. Sison, G.R. No. 123183, January 19, 2000;
People vs. Nielles, G.R. No. 200308, February 23, 2015; People vs. Asamudding, G.R. No. 213913,
September 02, 2015; Idanan vs. People, G.R. No. 193313, March 16, 2016).
Comment - Applying Article 61 (2) of the Revised Penal Code in reverse, the penalty two degrees
higher than reclusion temporal is death penalty. However, there is no rule in Article 61 that provides
the graduation of 20 years of reclusion temporal. If the accused is a minor, Article 61 has no rule on
graduating by one degree lower the penalty of 20 years of reclusion temporal.

Other view - In People vs. Canales, G.R. No. 126319, October 12, 1998, People vs. Chun, G.R. No.
158064, June 30, 2005, People vs. Cristobal, G.R. No. 159450, March 30, 2011, and Celestial vs.
People, G.R. No. 214865, August 19, 2015, it was held that death penalty is the penalty two degrees
higher than the fixed penalty of 20 years of reclusion temporal. However, Article 74 prohibits the
imposition of death penalty by applying the rules of graduation. In such a situation, the penalty of
reclusion perpetua shall be imposed with the accessory penalties for death penalty. Moreover, applying
Article 93 of the Old Penal Code, which Article 74 of the Revised Penal Code is derived, a convict in
such cases cannot be pardoned until forty years had elapsed. Thus, the court shall sentence the accused
to suffer reclusion perpetua for 40 years with the accessory penalties for death penalty.

Comment – It is submitted that Article 93 of the Old Penal Code could not prohibit the President in
granting pardon to offender, who was sentenced to suffer reclusion perpetua by reason of Article 74
and has not serve 40 years of imprisonment. First, the Old Penal Code was already repealed by the
Revised Penal Code. Second, the pardoning power of the President is discretionary; it should be noted
that the Old Penal Code was enacted by virtue of Spanish Royal Order dated September 4, 1884; at that
time the Spanish government had the authority to limit the pardoning power of the Chief Executive of
the Island of the Philippines, a colony of Spain; at present, the power of the President to grant
executive clemency is not subject to limitations other than those mentioned in the Constitution. Section
19, Article III of the Constitution provides: “Except in cases of impeachment or as otherwise provided
in this Constitution, the President may grant reprieves, commutations and pardons, and remit fines and
forfeitures, after conviction by final judgment.

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

SECOND VIEW - The penalty specified in Article 309, which shall be increased by two degrees in
accordance with Article 310, pertains to the prescribed penalty (e.g. prision mayor in its minimum and
medium periods).

In People vs. Trinidad, G.R. No. 199208, July 30, 2014 and People vs. Cahilig, G.R. No. 199208, July
30, 2014, the Supreme Court ruled that reclusion perpetua is the penalty next higher by two degrees
than prision mayor in its minimum and medium. However, this principle is not the controlling view.
Several Supreme Court cases are saying that the reclusion temporal in its medium and maximum
periods is the penalty next higher by two degrees than prision mayor in its minimum and medium.
For example, X is found guilty of qualified theft where the value of the property stolen is P32,000.
Since the value of the thing stolen is more than P12,000, the penalty prescribed for theft under Article
309 is prision mayor in its minimum and medium periods. This prescribed penalty shall be increased by
two degrees higher in accordance with Article 310, and that is reclusion temporal in its medium and
maximum periods. The principal penalty can be fixed at 19 years. Since there is an excess of P10,000
on top of P22,000, an incremental penalty of one year shall be added to the principal penalty of 19
years. Hence, the maximum penalty under ISLAW can be fixed at 20 years of reclusion temporal
(Ringor vs. People, G.R. No. 198904, December 11, 2013; Taopa vs. People, G.R. No. 184098,
November 25, 2008). The minimum penalty shall be fixed within the range of the penalty next lower in
degree, and that is, prision mayor in its maximum period to reclusion temporal in its minimum period
(10 years and 1 day to 14 years and 8 months). Hence, minimum penalty can be fixed at 14 years and 8
months of reclusion temporal. The court can sentence the accused to suffer 14 years and 8 months of
reclusion temporal as minimum to 20 years of reclusion temporal as maximum (People vs. Salonga,
G.R. No. 131131, June 21, 2001).

In qualified theft, rule that the maximum penalty cannot exceed twenty (20) years is not applicable
(San Diego vs. The Hon. CA, G.R. No. 176114, April 08, 2015; People vs. Cruz, G.R. No. 200081,
June 08, 2016). For example, X is found guilty of qualified theft where the value of the property stolen
is P92,000. Since the value of the thing stolen is more than P12,000, the penalty prescribed for theft
under Article 309 is prision mayor in its minimum and medium periods. This prescribed penalty shall
be increased by two degrees higher in accordance with Article 310, and that is reclusion temporal in its
medium and maximum periods. The principal penalty can be fixed at 19 years. Since there is an excess
of P70,000 on top of P22,000, an incremental penalty of 7 years shall be added to the principal penalty
of 19 years. Since the principal penalty and incremental penalty exceeds 20 years of reclusion
temporal, the accused shall be sentenced to suffer reclusion perpetua.

Other view - In qualified theft, rule that the maximum penalty cannot exceed twenty (20) years is
applicable. Thus, even though the incremental penalty is 39 years, which will be added to the principal
penalty, the total imposable penalty should not exceed 20 years and as such, the maximum imposable
penalty in this case is 20 years of reclusion temporal (Frontreras vs. People, G.R. No. 190583,
December 7, 2015).

Concept of Passive Malversation


MB CAMPANILLA·WEDNESDAY, 8 FEBRUARY 2017

Malversation is a concept similar to that of estafa through misappropriation under Article 315 and theft
under Article 308.

1. Malversation through misappropriation - If the mode of committing malversation is appropriation


or misappropriation, the concept of this crime is similar to that of estafa through misappropriation. For
example, a provincial cashier, who grants loans to provincial employees through the "vale" system, is
liable for malversation through misappropriation. To tolerate such a practice is to give a license to
every disbursing officer to conduct a lending operation with the use of public funds (Cabello vs.
Sandiganbayan, G.R. No. 93885, May 14, 1991; Meneses vs. Sandiganbayan, G.R. No. 100625 May
20, 1994). Lending loan is an act of ownership. Performing an act of ownership over a property by one
who is not the owner thereof without authority is misappropriation.

2. Malversation through taking - The concept of “taking” as an element of malversation, intentional


or passive, is different from that of misappropriation. According to Luis Reyes, an authority in criminal
law, the public funds or property need not be misappropriated, as the word “take” is separated by the
word “or” from the word “misappropriation” in Article 217 of the Revised Penal Code.

If the mode of committing malversation is “taking,” the concept of this crime is similar to that of theft.
In Reuda, Jr., vs. Sandiganbayn, G.R. No. 129064, November 29, 2000 the Supreme Court, En Banc
said that in Salamera v. Sandiganbayan, G.R. No. 121099, February 17, 1999, we emphatically
declared that the 4th element of malversation requires that a public officer must take public funds,
money or property, and misappropriate it to his own private use or benefit. There must be asportation
of public funds or property, akin to the taking of another’s property in theft.

For example, a teller in the office of the city treasurer, who was leaving the Office with public funds
collected by him, is liable for consummated crime of malversation (The Revised Penal Code by Luis
Reyes) through taking.

In malversation through taking, the taking can be committed by the accountable officer himself or by
another person. If the taking is done by another person, malversation can be committed by means of
dolo or culpa.

a. Intentional malversation - Malversation through taking is committed by means of dolo, if the


public property was taken by the accountable officer or by another person with consent of the
accountable officer. In U.S. vs. Ponte, G.R. No. L-5952, October 24, 1911, the municipal treasurer with
the help of a janitor and five policemen took the safe containing money from the municipal treasury.
The treasurer is liable for malversation through taking. The janitor and policemen although they are not
accountable officer, are also liable for malversation because of conspiracy rule.

b. Passive malversation – Malversation through taking is committed by means of culpa, if the public
property or fund was taken by another person and the accountable officer permitted the taking through
negligence or abandonment. This crime of culpable malversation is also called passive malversation.

In Office of the Court Administrator v. Soriano, A.M. No. 2864-P. May 16, 1985, it was held that if a
deputy clerk of court did not exercise the strictest supervision on his designated collection clerk, the
former would suffer the consequences of failure to remit the collections by the latter through
negligence. In short, by failing to exercise strict supervision on the collection clerk, the clerk of court
could be liable for malversation by permitting other person to take public fund through negligence.

In People vs. Pili, C.A., 53 O.G. 4535, cited in the Revised Penal Code, Book 2 by Luis Reyes, the
postmaster placed the cash, warrants and checks of the post office in his table drawer instead in his iron
safe. On the night of that day, his drawer was forced open and cash, warrants and checks were stolen.
For failure to place the public funds in the iron safe, the accused was convicted of malversation for
permitting other person to take the property through negligence.

To be held liable for passive malversation, it is important that there is a third person, who took the
public fund, and the accountable officer permitted the taking through abandonment or negligence. For
example, if the administrator of Manila Zoo failed to lock the cage of birds and as a consequence, the
birds escaped, he is not liable for malversation by means of culpa. The birds were not taken by a thief.
They simply escaped from the cage. The accountable officer did not permit the taking of public
properties by another person through negligence or abandonment since there is no “taking” that
transpired in the first place.

In Torres vs. People, G.R. No. 175074, August 31, 2011, the Supreme Court said malversation may
thus be committed either through a positive act of misappropriation of public funds or property of
passively through negligence by allowing another to commit such misappropriation.

With due respect to the Supreme Court in the Torres case, it is submitted that there is no passive
malversation through misappropriation. Article 217 of RPC in defining passive malversation states
“Any public officer who, by reason of the duties of his office, is accountable for public funds or
property x x x through abandonment or negligence, shall permit any other person to take such public
funds, or property.” The word taking is a concept different from misappropriation.

But for purpose of the bar exam, it is safe to follow the Torres principle.

Poh Chi Principle


MB CAMPANILLA·SUNDAY, 12 FEBRUARY 2017

Under the classical theory, on which the Revised Penal Code is principally based, a man is essentially a
moral creature with an absolutely free will to choose between good and evil. If despite of such free
will, he still commits an evil act prohibited by law, the State will penalize him as a measure of
retribution. A criminal should therefore be adjudged on the basis of his criminal resolution and not on
the number of acts he commit in furtherance of a single criminal mind. Despite the plurality of his acts,
if his criminal intent is singular, retributive justice of "an eye for an eye, a tooth for a tooth” is served
by imposing upon him a single penal sanction.

Crimes under the Revised Penal Code are mala in se, the concept of which gives importance to
criminal intent or mens rea of the offender. Thus, the number of criminal intent and not the number of
crimes committed generally determine the number of penalty to be imposed for multiple crimes.
Multiple crimes committed by the same offender under a single criminal impulse are treated as one
crime and punished with a single penalty. Thus, a single penalty is being imposed for multiple crimes
with single criminal intent, which are merged to form a delito compuesto, delito complejo, delito
continuado or absorbing crime.

The “one penalty for one criminal mind” rule is also based on the “absorption system”, which is one of
the three systems of penalty, under which lesser penalties are absorbed by the greater penalties.
One of the rules that require imposition of single penalty for multiple crimes is the doctrine of
absorption, under which one crime absorbs another if the latter is inherent in, an element of, or a
necessary consequence of the commission of the former. A crime is considered inherent where its
commission is an indispensable means to commit another.

For example, a person who by means of violence coerces a lady to have sexual intercourse with him
should not be held liable for physical injuries and coercion in addition to rape. Physical injuries are
necessary consequence of the employment of violence, which is an element of rape, while coercion is
inherent therein. Hence, physical injuries and coercion are absorbed in rape.

One who enters an inhabited house by using picklock and takes properties therein without consent of
its owner should not be held liable for illegal possession of picklock and trespass to dwelling in
addition to robbery in inhabited house. Use of picklock to enter into a dwelling is a constructive force
upon thing that will qualify the taking into robbery in inhabited house. Since use of picklock and entry
in dwelling are elements of robbery by force upon thing, illegal possession of picklock and trespass to
dwelling are absorbed in robbery.

The essential elements of a given crime cannot be disintegrated in different parts, each one to stand as a
separate ground to convict the accused of a different criminal offense. The elements constituting a
given crime are integral and inseparable parts of a whole. In contemplation of law, they cannot be used
for double or multiple purposes. They can only be used for the sole purpose of showing the
commission of the crime of which they form part. The nature of a crime, which contains criminal
components, does not endow it with the functional ability of worm multiplication or amoeba
reproduction (People vs. Labra, G.R. No. L-886, August 10, 1948).

One of the basic principles in doctrine of absorption is the rule that if a crime is an indispensable or
inherent means to commit another crime, the latter absorbs the former. For example, murder is an
indispensable means to commit treason (People vs Labra, supra) or rebellion (People vs. Hernandez,
G.R. Nos. L-6025-26, July 18, 1956); hence, the latter absorbs the former.

Offenses punishable under special laws, which are not wrong in nature, are mala prohibita, and yet, the
Supreme Court extended the application of the doctrine of absorption to them. For example since
obstruction of justice (Enrile vs Amin, G.R. No. 93335, September 13, 1990), or illegal possession of
loose firearm (People vs. Rodriguez, G.R. No. L-13981, April 25, 1960; Section 29 of RA No. 10591)
is inherent in the commission or rebellion or coup d'état, the latter absorbs the former.

Akin to the doctrine of absorption is the single act rule. In US vs. Gustillo, G.R. No. L-5843, March 25,
1911, the accused was caught in possession of two unlicensed firearm. Since there is a single act of
possession involving two unlicensed firearms, with the single criminal intention to violate the law, the
accused cannot be convicted of two crimes because the rule on double jeopardy.

Section 29 of RA No. 10591 prescribes a higher penalty if the offender is in possession of three loose
firearms. Hence, the intention of the law is not to treat possession of three firearms as three separate
and distinct crimes.
In David vs. People, G.R. No. 181861, October 17, 2011, it was held that an accused may only be
convicted of a single offense of possession of dangerous drugs if he or she was caught in possession of
different kinds of dangerous drugs (shabu and marijuana) on a single occasion. The David principle
conforms to the Gustillo case.

In U.S. vs. Poh Chi, G.R. No. 6637, September 1, 1911, it was held that opium and the pipe were found
together under the floor; they were found in the same place, at the same time, and by the same person.
Applying the Gustillo case, the Supreme Court, En Banc said it is true that the law has provided a
certain punishment for the possession of a pipe used in the smoking of opium, and for possession of
opium, but it is not believed that it was the intention of the legislature to have separate complaints filed
against a person who was found in the illegal possession of opium and a pipe at the same time.

The Supreme Court in several variant cases but involving the doctrine of absorption of offenses under
special laws affirmed the Poh Chi principle (People vs. Buenviaje, G.R. No. 22945, March 03, 1925;
People vs. Elkanish, G.R. No. L-2666, September 26, 1951; People vs. Alger, G.R. No. L-4690,
November 13, 19520).

Applying the Poh Chi principle by analogy, a person, who is caught in possession of unregistered
firearm with ammunition, should only be prosecuted for the crime of possession of loose firearm
although the law also prescribes a penalty for possession of ammunition. In sum possession of
unlicensed firearm and ammunition should be treated as single offense (See: Pastrano vs. Hon. Court of
Appeals, G.R. No. 104504, October 31, 1997. This doctrine where possession of firearm absorbs the
crime of possession of ammunition is now found in Section 28 of RA No. 10591.

Under the same line of reasoning, a person, who is taking bets in an illegal gambling, should not be
prosecuted for illegal gambling and illegal possession of gambling paraphernalia. Using gambling
paraphernalia is inherent in the commission of illegal gambling.

However, the Supreme Court, First Division in People vs. Casacop, G.R. No. 210454, January 13,
2016 did not apply the Poh Chi principle that possession of dangerous drugs absorbed possession of
drug paraphernalia. In Casacop case, after the accused was apprehended for selling drugs, plastic
sachets containing shabu, an improvised glass tooter containing shabu residue and the rolled aluminum
foil with shabu residue were found in his pocket. He was convicted of three separate crimes of sale of
dangerous drugs under Section 5, possession of dangerous drug under Section 11 and possession of
drug paraphernalia under Section 12.

In People vs. Piad, G.R. No. 213607, January 25, 2016, the Supreme Court, Second Division, sustained
the conviction of the accused for possession of dangerous drugs and possession of drug paraphernalia.

Despite of the Casacop case and Piad case, it is my submission that the Pho Chi principle is still a
good rule. The Supreme Court in Casacop case and Piad case is not sitting En Banc. Hence, it cannot
abandon the Pho Chi case. Under Section 4, Article VIII of the Constitution, no doctrine or principle of
law laid down by the court in a decision rendered en banc or in division may be modified or reversed
except by the court sitting en banc.
In Zoomzat, Inc vs. People, G.R. No. 135535, February 14, 2005, the Supreme Court, First Division
made an interpretation of Section 3 (e) of RA No. 3019, which is different from that made by the
Supreme Court En Banc in Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987.
According to the case of Stilgrove vs. Sabas, A.M. No. P-06-2257, March 28, 2008, Mejorada was
decided by the Court en banc. Following the constitutional mandate that no doctrine or principle of law
laid down by the Court in a decision rendered en banc or in division may be modified or reversed
except by the Court sitting en banc, the case of Zoomzat cannot reverse the pronouncement in
Mejorada, the former case having been decided by a Division of the Court.

NOTE: For purpose of the bar exam, please follow the Casacop case and Piad case

What is the crime committed in Marawi


City incident?
MB CAMPANILLA·TUESDAY, 13 JUNE 2017

There are two basic elements of an intentional felony, the criminal act and criminal intent. The
performance of the criminal act consummates the crime even though criminal purpose which the
offender intended to accomplish has not been attained. The presence of the criminal intention, which
accompanied the criminal act, and not the attainment of the intended objective, requires the completion
of the crime.

In theft, the criminal act is the taking while the criminal intent is to gain. Actual gain is not necessary to
consummate the crime of theft. This crime is consummated at the precise moment that the offender
took the property without consent of the owner with intent to gain. Thus, if one took a bearer check of
his employer with intent to gain by encashing it, failure to gain or to encash the check due to external
cause such as stop payment, will not prevent the consummation of the crime of theft (See: People vs.
Seranilla, G.R. No. L-54090, May 9, 1988).

In rebellion, the criminal acts are public uprising and taking up arms while the criminal intent is
removing the territory of the Philippines from allegiance to government and its laws (e.g. overthrowing
the government) or deprivation of executive or legislative power or prerogative.

If the rebels merely intended to remove part of the territory of the Philippines from the allegiance to the
government (e.g. intent to make a city independent and separate from the Republic of the Philippines),
the crime is called insurrection. But Article 134 of the Revised Penal Code merges the concept of
rebellion and insurrection as one crime.

According to Luis Reyes, the crime of rebellion is complete or consummated the very moment a group
of rebels rise publicly and take arms against the government for the purpose of overthrowing the same
by force. The criminal intent or purpose of overthrowing the government is only the subjective element
of the offense and it is sufficient that such purpose exists. It is not necessary that they accomplish it.

In U.S. vs. Racines, G.R. No. 1486, April 18, 1905, a great number of people gathered with the object
of rebellion against the Government, their plan being to attack and take by force a town. However, they
did not accomplish their objective because they were surprised at their headquarters in Manila by some
of the Constabulary forces, which succeeded in dispersing them after an engagement. Those
participating in the uprising were guilty of insurrection.

Note:

If rebellion creates a condition of widespread and extraordinary fear and panic among populace in
order to coerce the government to give in to an unlawful, the crime committed is terrorism (RA No.
9372)

New Concept of an Accountable Officer


MB CAMPANILLA·SATURDAY, 4 FEBRUARY 2017

For purpose of malversation, national officer shall be considered as an accountable officer if he has
custody or control of public property by reason of the duties of his office (Government Auditing Code
of the Philippines) such as a principal of a public high school entrusted with public funds (Torres vs.
People, GR No. 175074, August 31, 2011).

However, the Section 340 of the Local Government Code expanded the concept of an accountable
local officer. The local accountable officers under this Code are:

1. Local officer, who has possession or custody of local government funds because of the nature of
their functions (Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015) such as cashier, treasurer,
collector, property officer or any other officer or employee who is tasked with the taking of money or
property from the public which they are duty-bound to keep temporarily until such money or property
are properly deposited in official depository banks or similar entities; or until they shall have endorsed
such money or property to other accountable officers or concerned offices (Panganiban vs. People,
G.R. No. 211543, December 09, 2015).

2. Local officer, who has participated in the use or application of thereof (Zoleta vs. Sandiganbayan,
supra). Vice-Governor and treasurer have duty to participate in the release of funds. Their signatures
are needed to disburse municipal funds. No payment can be effected without their signatures. They had
control and responsibility over the funds; hence, they are accountable officer (Manuel vs. Hon.
Sandiganbayan, G.R. No. 158413, February 08, 2012).

In Panganiban vs. People, G.R. No. 211543, December 09, 2015, the Supreme Court ruled that a mayor
with respect to cash advance for an official travel that he did not undertake is not an accountable officer
since his duty is not to collect money or property from the public.

However, the application of the Panganiban case must be confined to cash advance received by a
mayor. A public officer with respect to cash advance for livelihood (People vs. Icdang, G.R. No.
185960, January 25, 2012) or cash advance to buy property (People vs. Devalos, G.R. No. 145229,
April 20, 2006) is treated by the Supreme Court as an accountable officer. Moreover, a mayor with
respect to funds in the local treasury is an accountable officer if he has a duty to participate in the
release thereof applying the Manuel principle.
Same as in malversation, the offender in failure to render accounting under Article 218 of RPC is also
an accountable officer (People vs. Lumauig, G.R. No.166680, July 7, 2014). If an accountable officer
misappropriated cash advance that he received, the crime committed is malversation (People vs.
Icdang, supra; People vs. Devalos, supra). However, if an accountable officer did not misappropriate a
cash advance, but the liquidation thereof was delayed for more than two months after such accounts
should be rendered, the crime committed is failure to render an accounting (People vs. Lumauig,
supra).

However, in Panganiban vs. People, the Supreme Court ruled that a mayor with respect to travel cash
advance is not an accountable officer since his duty is not to collect money or property from the public.
The proper charged should have been failure to render an accounting. In sum, a mayor is not an
accountable officer for purpose of malversation. But he is an accountable officer for purpose of failure
to render accounting.

Raping a transgernder
MB CAMPANILLA·SUNDAY, 15 JANUARY 2017

Having sexual intercourse through force with a gay, who underwent gender reassignment, is not rape
through sexual intercourse since the victim is not a woman. Rape through sexual intercourse is not a
gender-free crime. It is committed by a man having carnal knowledge of a woman through force.
Neither is this crime instrument or object rape since the offender used his penis, and not an instrument
or object, in committing the crime. Nor is this crime rape through oral intercourse or sodomy since the
artificial vagina of the victim is not a mouth or anal orifice. Hence, the crime committed is acts of
lasciviousness.

LITIS PENDENTIA DRESSED IN


PRISON GREY
MB CAMPANILLA·FRIDAY, 23 JUNE 2017

Before, helping a criminal offender to escape was only an act of accessory under Article 18 of the
Revised of the Revised Penal Code. Now, such act of assisting a criminal offender to escape is also
covered by PD No. 1829.

However, the intention of PD No. 1829 in punishing an act of an accessory by assisting a principal to
escape as an obstruction of justice is not to supplant Article 18 of the Revised Penal Code but to
supplement it. That is why the penalty for obstruction of justice is that prescribed by PD No. 1829 or
that by the Revised Penal Code for a felony committed by an accessory, whichever is higher.

The penalty prescribed for obstruction of justice under PD No. 1829 is prision correccional in its
maximum period unless other law prescribed a higher penalty. PD No. 1829 provides “If any of the acts
mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be
imposed.” The intendment of the law in prescribing a fixed penalty or that provided by other law,
whichever is higher, is not to prosecute the offender for obstruction of justice and for other crime
arising from the same act such as furnishing a firearm to an escaping offender.

The concept of an act of an accessory by assisting a principal to escape is the same as that of
obstruction of justice by facilitating the escape of an offender. However, PD No. 1829 has broadened
the concept of this act of an accessory by making the exempting circumstance of relationship under
Article 20 the Revised Penal Code inapplicable, and by punishing one who helps an offender to escape
regardless of the classification and kind of crime committed by and the nature of the participation of an
escaping offender.

To make an accused liable as an accessory, it is important that he did not participate as principal or
accomplice (Article 18 of the Revised Penal Code). Although this is not expressly required in PD No.
1829, to make one liable for obstruction of justice, it is also important that he did also not participate as
principal or accomplice. In sum, a principal himself cannot be held liable for obstruction of justice. PD
No. 1829 is applicable only to another person and not to the offender himself (Angeles vs. Gaite, G.R.
No. 165276, November 25, 2009).

In a case, where the accused is charged as principal in the crime of murder for conspiring with the
principal actor in killing the victim, he should not be charged for obstruction of justice for giving a
firearm to the principal actor to frustrate his apprehension. The act of furnishing firearm should be
considered as an act made in furtherance of conspiracy to commit murder; hence, such act of furnishing
a gun is necessarily included in the charge of murder. To prosecute the accused for obstruction of
justice, which is considered as necessarily included in the charge of murder, is to offend the rule on
double jeopardy.

Prior to the 2000 Revision of the Rules of Criminal Procedure, one of the grounds to quash an
information is that when the accused has been previously convicted or “in jeopardy of being convicted”
or acquitted of the offense charged. Interpreting this provision, Justice Florenz Regalado in his
dissenting opinion in the case of People vs. Pineda, G.R. No. 44205 February 16, 1993 stated:

“Spelled out to the point of elemental details, said paragraph (h) actually provides for two modes
constitutive of separate grounds for quashal of a second indictment for the same offense. Recasting its
provisions for greater clarity, the first mode allows quashal where the accused has been previously
convicted or acquitted of the same offense with which he is again presently charged and in danger of a
second conviction. This would correspond, in civil procedure, to res judicata as a ground for dismissal.
The second mode stated in the same paragraph contemplates the situation where the accused is only in
jeopardy or danger of being convicted in the first case, since no judgment or final order has yet been
rendered therein, and he is now charged anew with the same offense. This is equivalent, in civil case,
to litis pendentia or auter action pendant, likewise a ground for dismissal.”

In connection with the concept of litis pendentia dressed in prison grey, Justice Regalado wrote in his
book, Remedial Law Compendium:
“The Rule prohibits a duplicitous information and declares the same to be quashable, but does not
specifically provide for the situation where a complex crime which should be properly charged in a
single information is made the subject of several informations by charging each component crime
thereof separately. It is submitted that, under such situation and provided all other requisites are
present, the proper remedy is to move to quash the other charges on the ground of double jeopardy.”

However, in the case of People vs. Pineda, supra, the majority held that there can be no double
jeopardy if both cases are still pending. The 2000 Revision of the Rules of Criminal Procedure deleted
the phrase “in jeopardy of being convicted” to incorporate the Pineda doctrine.

But if the special law treats an offense punishable therein and a felony under the Revised Penal Code as
one crime, and yet, there are two informations filed by the Office of the Prosecutor, one will stand
while the other will the quashed despite both cases are still pending. In Celino vs. CA, G.R. No.
170562, June 29, 2007, it was held:

“When the other crime involved is one of those enumerated under RA 8294 (now RA No. 10591), any
information for illegal possession of firearm should be quashed because the illegal possession of
firearm would have to be tried together with such other offense, either considered as an aggravating
circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or
attempted coup d’etat.”

Rephrasing the substance of the ruling in Celino case, where the other case involves rebellion or coup
d’etat, the information for illegal possession of firearm should be quashed since the former absorbs the
latter (note: sedition is excluded by RA No. 10591 from the rule on absorption); where the other case is
homicide or murder, the information for illegal possession of firearm should be quashed since the latter
is just an aggravating circumstance of the former. Obviously, the ground for the quashal of information
is not double jeopardy or res judicata in prison grey since there is no final judgment yet. Although the
Supreme Court did not describe the ground for quashing the information, it is submitted that the basis
of quashing the information for illegal possession of firearm is litis pendentia in prison grey. In sum,
the information for illegal possession is quashable because of the pending litigation for murder,
homicide or rebellion.

Moreover, if an offense punishable under special law is absorbed in a felony punishable under the
Revised Penal Code, and yet, there are two informations filed by the Office of the Prosecutor, the
information for the absorbing felony will stand while that for the absorbed offense will be quashed,
despite both cases are still pending. In Enrile vs Amin, G.R. No. 93335, September 13, 1990, Juan
Ponce Enrile was charged for rebellion in first information and obstruction of justice in the second
information for harboring or concealing Gregorio "Gringo" Honasan in his house to frustrate his
apprehension for rebellion. Since obstruction of justice is committed in furtherance of rebellion, the
latter absorbs the former. Hence, the Supreme Court quashed the information for obstruction of justice
even though both cases are still pending.
It is submitted that the Enrile case is another classic example of the principle of litis pendentia in prison
grey. In sum, the information for obstruction of justice is quashable because of the pending litigation
for rebellion.

In this case, since the act of furnishing weapon to the principal actor, which is constitutive of
obstruction of justice, is made in furtherance of the conspiracy to commit murder, and the intention of
the law is not to prosecute violator of PD No. 1829 for obstruction of justice and at the same time a
felony under the Revised Penal Code, the information for obstruction of justice must be quashed
despite the pendency of the case for murder applying the principle of litis pendentia in prison grey.

INTERRUPTION OF RUNNING OF
PRESCRIPTION OF CRIME COVERED
THE RULES ON SUMMARY
PROCEDURE
MB CAMPANILLA·FRIDAY, 20 JANUARY 2017

According to the case of Jadewell Parking Systems Corp. vs. Lidua, Sr., G.R. No. 169588, October 7,
2013, the filing of complaint involving violation of ordinance for preliminary investigation will not
interrupt the running of 2 month prescription. The provision in the Rules on Criminal Procedure
regarding the interruption of prescription by institution of criminal action is not applicable to violation
of ordinance because case involving this crime is covered by the Rules on Summary Procedure.

It is however submitted that the Jadewell principle is only applicable to crime punishable by an
ordinance and not to a felony (e.g. slight physical injuries or unjust vexation) under the Revised Penal
Code, which is covered by the Rules on Summary Procedure.

The prescription of offense covered by an ordinance is governed by Act No. 3326, which provides that
“the prescription shall be interrupted when the proceedings are instituted against the guilty person.”
According to Jadewell case, the word “proceedings” in Act No. 3326 pertains to judicial proceeding. In
sum, only the institution of judicial proceeding for violation of ordinance or the filling of information
in court interrupts the running of prescription.

On the other hand, prescription of felony is governed by Article 91 of the Revised Penal Code, which
provides “the period of prescription shall be interrupted by the filing of the complaint or information.”
According to the case of Francisco vs. CA, G.R. No. L-45674, May 30, 1983, the filling of complaint
for preliminary investigation in the fiscal’s office interrupts the running of prescription of simple
slander because Article 91 does not distinguish whether the complaint is filed in the Office of the
Prosecutor for preliminary investigation or in court for action on the merits. It should be noted that
simple slander is covered by the Rules on Summary Procedure.

In People vs. Bautista, G.R. NO. 168641, April 27, 2007, the Supreme Court applied the Francisco
principle to slight physical injuries, which is also covered by the Rules on Summary Procedure.
The Supreme Court in Jadewell case is not sitting En Banc, and thus, it cannot abandon the principle in
Francisco case. Under Section 5 of Article VIII, of the Constitution, no doctrine or principle of law
laid down by the court in a decision rendered en banc or in division may be modified or reversed
except by the court sitting en banc. Moreover, Jadewell case is interpreting Act 3326 and not Article 91
of the Revised Penal Code, which is the governing law on prescription of felony.

Another point to consider is that the interpretation of the Supreme Court in several cases as to the word
“proceedings” in Act No. 3326 in connection with prescription of offense punishable under special law
is different from that in the Jadewell case. According to the case of SEC vs. Interport Resources
Corporation, G.R. No. 135808, October 6, 2008, the term “proceedings” in the said law is either
executive or judicial. In sum, the institution of executive proceedings or the filing of complaint for
preliminary investigation interrupts the running of prescription of crime under special law.

In People vs. Pangilinan, G.R. No. 152662, June 13, 2012, Panaguiton vs. Department of Justice, G.R.
No. 167571, November 25, 2008, Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
September 11, 2013, and People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29, 2009
reaffirmed the Interport Resources case.

It is worthy to note that in Pangilinan case, and Panaguiton case, the crime involved is violation of BP
Blg. 22. This crime is covered by the Rules on Summary Procedure, and yet, the Supreme Court ruled
that the filing of complaint in the fiscal office interrupts the running of prescription.

Again, the Jadewell case cannot abandon the principle in Pangilinan case and Panaguiton case since
the Supreme Court is not sitting En Banc.

The Jadewell case is a controversial case. It made an interpretation of Act No. 3326 different from that
in Interport Resources case and other cases simply because an ordinance is covered by the rules on
Summary Procedure. The Jadewell case reaffirmed the Zaldivia principle, which provides that the
filing of complaint in the fiscal office will not interrupt the running of prescription while Interport
Resources case and other cases abandoned that principle. At any rate, the Supreme Court in the
Jadewell case has already spoken that the filing of complaint for preliminary investigation will not
interrupt the running of prescription of violation of ordinance. But such principle in the Jadewell must
be confined to violation of ordinance, and not to felonies under the Revised Penal Code or offenses
under Special Law enacted by Congress, regardless of whether they are covered by the Rules on
Summary Procedure or not.

Mathematical formula in Criminal Law


MB CAMPANILLA·WEDNESDAY, 18 JANUARY 2017

In appreciating a qualifying or aggravating circumstance, the court must consider the intention of the
accused. If the accused burned the body of the victim to kill him, the crime committed is murder
qualified by the circumstance of by means of fire. If he burned the victim after inflicting a mortal
wound to augment his physical suffering, cruelty is present. If he burned the dead body of the victim
after stabbing him to destroy the corpus delicti, employment of means to afford impunity can be
appreciated. If he burned the dead body of the victim after stabbing him to scoff or outrage the corps of
the victim, scoffing may qualify the killing into murder.

If there are two or more circumstances based on the same incident, only one will be appreciated while
the others are absorbed. If the offenders, who killed the victim, took advantage of their superior
strength to render him defenseless, the crime committed is murder qualified by the circumstance of
treachery. Abused of superior strength is absorbed. If the offender, who killed the victim, took
advantage of the darkness of the night to render him defenseless, treachery will qualify the killing into
murder while nighttime is absorbed.

If there are two or more circumstances not based on the same incident, one will be appreciated to
qualify the killing into murder and the others to aggravate the criminal liability of the accused.

In People vs. Laspardas, G.R. No. L-46146, Oct. 23, 1979, the Supreme Court appreciated abuse of
superior strength as a circumstance that qualifies the killing into murder while scoffing at the corps of
the victim (sodomizing the victim after killing her) as an ordinary aggravating circumstance. According
to Regalado, this ruling is erroneous since scoffing is not listed in Article 14 of RPC as an ordinary
aggravating circumstance. The court should have appreciated scoffing as a qualifying circumstance in
Article 248 while abuse of superior strength as an ordinary aggravating circumstance, and not the other
way around.

If the offender after inflicting fatal wound upon the victim, undressed her to augment her emotional
suffering, this circumstance can be appreciated either as ignominy or scoffing at the person of the
victim. If offender killed the victim with treachery, the crime committed is murder. Undressing the
dying victim must be appreciated as an ordinary aggravating circumstance of ignominy, and not
scoffing at the person of the victim. Article 14 of RPC has not listed scoffing as an ordinary
aggravating circumstance. If offender killed the victim without other circumstance, undressing the
dying victim must be appreciated as qualifying circumstance of scoffing, and not ignominy. Article 248
of RPC on murder has not listed ignominy as a qualifying circumstance.

If the offender was wearing a mask to conceal his identity at that time that he killed the victim, this
circumstance can be appreciated as either disguise or employment of means to afford impunity. If
offender killed the victim with treachery, the crime committed is murder. Wearing a mask must be
appreciated as an ordinary aggravating circumstance of disguise, and not employment of means to
afford impunity. Article 14 of RPC has not listed employment of means to afford impunity as an
ordinary aggravating circumstance. What is listed in this provision is committing a crime with the aid
of person to afford impunity. If the offender killed the victim without other circumstance, wearing a
mask must be appreciated as qualifying circumstance of employment of means to afford impunity, and
not disguise. Article 248 of RPC on murder has not listed disguise as a qualifying circumstance.

There is no mathematical formula in appreciating a circumstance either as qualifying or aggravating


circumstance. Such appreciation will always be dependent on the particular situations of the case.
Cutting the ear of a dying victim can be considered as qualifying or ordinary aggravating circumstance
of cruelty, or qualifying circumstance of scoffing. Taking advantage of the darkness of the night to hide
his identity may be treated as ordinary aggravating circumstance of nighttime or qualifying
circumstance of employment of means to afford impunity. And so on, and so forth.

Consummation of robbery by using


force upon thing
MB CAMPANILLA·WEDNESDAY, 25 JANUARY 2017

According to CA Justice Luis Reyes citing the case of People vs. Del Rosario, C.A., 46 O.G. 4332, to
consummate the crime of robbery by using force upon thing, the offender must take out or carry the
property out of the building since the offender must be in the position to dispose of it freely.

However, it is my submission that taking the property out of the building to be able to freely dispose
the property is not important to consummate robbery by using force upon thing.

In Valenzuela vs. People, G. R. No. 160188, June 21, 2007, the accused were convicted of
consummated theft although they failed to take the stolen properties out of the parking area of SM
since ability to freely dispose the property is not mentioned in Article 308 as an element of theft.

In Peope vs. Salvilla, G.R. No. 86163, April 26, 1990, the accused were convicted of consummated
robbery by means of violence and intimidation although they failed to take the stolen properties out of
the building. The fact that the accused had no opportunity to dispose of the property does not affect the
nature of the crime.

In sum, what is important in “taking” as an element of theft and robbery by means of violence and
intimidation is gaining possession, manually or constructively over the property. Since “taking” in theft
or robbery by mean of violence and intimidation is also the actus reus in robbery by using force upon
thing, there is no reason to make an interpretation of this word “taking” in the latter different from that
in the former. Ability to freely dispose the property or “taking out” is not an element mentioned in
Articles 299 and 302 of RPC on robbery by using force upon thing.

But if the intention of the robbers is to break the locked receptacle or furniture outside the building, the
crime will be consummated only upon removal of the receptacle or furniture from the building. With
respect to this mode of committing this crime, taking the property away or removing it from the
building is an element of this crime as required in Articles 299 and 302.

PROBATION

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

Under Section 9 of PD 968, one, who is sentenced to suffer a penalty (or maximum indeterminate penalty) of more than 6 years, is not qualified to
apply for probation. However, under Section 70 of RA No. 9165, a first time minor offender can apply for probation for the crime of possession or
use of dangerous drug even if the penalty is higher than 6 years of imprisonment. But Section 70 of RA 9165 is not applicable sale of dangerous
drugs. Section 24 of RA No. 9165 disqualifies drug traffickers and pushers for applying for probations although the accused is a minor. The law
considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators (Padua vs. People, G.R. No. 168546,
July 23, 2008).

CONFUSION IN DETERMINING
VENUE FOR VIOLATION OF BP BLG.
22
MB CAMPANILLA·SUNDAY, 22 JANUARY 2017

The venue of a criminal action is the place where the crime was committed or where any of the
elements of a crime took place. Since issuance of the check and dishonor thereof are elements of
violation of BP Blg. 22, the offended party can institute criminal action either in the place where the
check was issued or the place where it was dishonored (People vs. Grospe, G.R. No. 74053, January
20, 1988).

If the check was deposited in the bank upon which the check was drawn, the place of dishonor as an
alternative venue is identifiable. However, if the check was deposited in the bank other than the one
upon which the check was drawn, the place of dishonor is jurisprudentially difficult to determine. In
this situation, there are two banks involved, the one where the check was deposited and that upon
which the check was drawn. To determine the place of dishonor for purposes of venue, there is a need
to identify which of the two banks dishonored the check, the drawee bank or the depositary bank.

There are two views regarding this issue. The first view is that the bank where the check was deposited
is the one that dishonored the check. Hence, the place where the check was deposited is a proper venue.
The second view is that the bank upon which the check was drawn is the one which dishonored the
check. Hence, the place where the drawee bank is located is a proper venue.

In People vs. Grospe, G.R. No. 74053, January 20, 1988, the checks were drawn upon Planters
Development Bank, Bulacan but deposited in BPI, Pampanga. It was held that Pampanga, the place
where the checks were deposited is a proper venue for violation of BP Blg. 22. This is the first view.

In Lim vs. CA, G.R. No. 107898, December 19, 1995, the check was drawn upon Solidbank, Kalookan
City but deposited in Rizal Commercial Bank Corporation. It was held that Kalookan City, the place
where the drawee bank is located, is a proper venue for violation of BP Blg. 22. This is the second
view.

In Nieva, Jr. vs. CA, G.R. No. 95796-97, May 2, 1997, the check was drawn upon Commercial Bank of
Manila, Quezon City but deposited in BPI at Angeles City. It was held that Angeles City, the place
where the check was deposited is a proper venue for violation of BP Blg. 22. In sum, the Supreme
Court reverted back to the first view.

In Rigor vs. People, G.R. No. 144887, November 17, 2004, the check was drawn upon Associated
Bank, Tarlac but deposited in PS Bank, San Juan. It was held that Tarlac, the place where the drawee
bank is located, is a proper venue for violation of BP Blg. 22. In sum, the Supreme Court returned to
the second view.

In Yalong vs. People, GR No. 187174, August 28, 2013, the check was drawn upon Export and
Industry Bank, Manila but deposited in LBC Bank, Batangas. It was held that Batangas, the place
where the check was deposited, is a proper venue for violation of BP Blg. 22. In sum, the Supreme
Court for the second time reverted back to the first view.

Date of postading vs. date of maturity


MB CAMPANILLA·SATURDAY, 28 JANUARY 2017

Issuance means first delivery, physically or constructively, of a check complete in its form to the
person who takes it as a holder. In posdated check, the date of physical delivery thereof is not the date
of issuance since at the time the same is not yet complete in its form for not being payable upon
demand, which is an essential character of a check. Thus, the date of issuance is the date of maturity.
The drawer constructively delivered the matured check, which is now complete in its form, to the
payee. Under the negotiable instrument law, delivery can be made physically or constructively.

In order to constitute estafa through issuance of bouncing check, the postdating of a check must be the
efficient cause of parting of money or property of the offended party (People vs. Reyes, GR No.
157943, September 04, 2013). The essence of this crime is deceit. Hence, it is important that at the time
that the accused is convincing the offended party to part his property or money the former is aware that
the check is not funded and his intention is to defraud the latter by postdating the check. In Sales vs.
Hon. Court of Appeals, G.R. No. L-47817, August 29, 1988, accused was acquitted of estafa through
issuance of bouncing check because of the failure on the part of the prosecution to show that the
accused had insufficient funds in the bank to cover the checks at the time she postdated them. Note:
She was convicted of other deceit.

In violation of BP Blg. 22 of the first form, the fund or credit with the drawee bank must be insufficient
not only at the time of presentment for payment or deposit but also at the time of issuance. To be held
liable for this crime, the accused must know of such insufficiency at the time of issuance, which is the
date of maturity, and not the date of postdating.

For example, X delivered on January 25, 2016 to the Z a check dated February 25, 2016 to buy a
diamond ring. For purpose of prosecution for estafa through issuance of bouncing check, it is important
to establish that at the time of postdating or January 25, 2016, X was aware that his check is unfunded,
and despite of such knowledge, he used this unfunded check to defraud Z. For purpose of prosecution
for violation of BP Blg. 22, it is important to establish that at the time of issuance, which is the date of
maturity or on February 25, 2016, X knows that the check is unfunded, and as a consequence, the same
was dishonored by the bank for the said reason.

Carnapping of a Kuliglig
MB CAMPANILLA·FRIDAY, 27 JANUARY 2017
To be considered as a motor vehicle contemplated by the carnapping law, it is important that the same
is using public highways, and not a street exclusively for private use. However, license to use a tricycle
on public highways is not required to make it a "motor vehicle" within the definition given by the
carnapping law. The law protects a vehicle, which uses the streets with or without the required license.
The crime of carnapping is not measured by kind of streets or highways the vehicle is being used; but
by the very nature of the vehicle itself and the use to which it is devoted. Otherwise, cars using the
streets but still unlicensed or unregistered as when they have just beet bought from the company, or
only on test runs, may be stolen without the penal sanction of the carnapping law. This obviously,
could not have been the intention of the law (Izon vs. People, G.R. No. L-51370, August 31, 1981).

In People vs. Lallave, CA, 66 O.G. 3192, a motorized bicycle is considered a motor vehicle within the
meaning of qualified theft. This case was decided prior to the passage of the carnapping law. It is
submitted that if the motorized bicycle is using public highways, the same shall be treated as motor
vehicle contemplated by the carnapping law. Applying the Izon principle, license to use this motorized
bicycle on the public highways is not required to make it a "motor vehicle" within the definition given
by the carnapping law.

Hence, taking kuliglig or an unregistered motorized pedicab without consent of the owner constitutes
carnapping.

Passion arising from homosexuality


MB CAMPANILLA·TUESDAY, 22 NOVEMBER 2016

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

PREFERENCE OF IMPOSITION OF
FINE IN BP BLG. 22
MB CAMPANILLA·SUNDAY, 29 JANUARY 2017

In Vaca v. Court of Appeals, G.R. No. 131714 November 16, 1998, accused are first-time offenders.
They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they
brought this appeal, believing in all “good faith,” that they had not committed a violation of B.P. Blg.
22. To redeem valuable human material and preventing unnecessary deprivation of personal liberty, the
Supreme Court imposed fine instead of imprisonment.
The case Lim vs. People, G.R. No. 130038, September 18, 2000 affirmed the Vaca principle

Adopting the principle in Vaca case and Lim case, Supreme Court issued Administrative Circular No.
12-2000, which establishes a rule of preference in the application of the penal provisions of B.P. Blg.
22 such that where the circumstances of both the offense and the offender clearly indicate good faith or
a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered
as the more appropriate penalty (Yu vs. People, G.R. No. 134172, September 20, 2004).

On February 14, 2001, Supreme Court issued Administrative Circular 13-2001 which modified
Administrative Circular No. 12-2000 by stressing that the clear tenor of Administrative Circular No.
12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference
in the application of the penalties provided for in B.P. 22. Under this new circular, the Judges
concerned may, in the exercise of sound discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition of a fine alone would best serve the
interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of
the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;
Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to
the application of RPC on subsidiary imprisonment.

The penalty of fine is proper where the accused acted in good faith (Vaca vs. CA, supra, Lim vs.
People, supra); or where there is no showing that accused acted in bad faith (Aguirre vs. People, G.R.
No. 144142, August 23, 2001); or where there is no showing that accused was not a first time offender
(Recuerdo vs. People, G.R. No. 133036, January 22, 2003; Ongson vs. People, G.R. No. 156169,
August 12, 2005); or where the health condition of the accused is not good (So vs. CA, G.R. No.
138869, August 29, 2002); or where the accused made a substantial payments (Lagman vs. People,
G.R. No. 146238, December 7, 2001); or where the accused exerted effort to settle the case (Tan vs.
Mendez, G.R. No. 138669, June 6, 2002).

The penalty of imprisonment is proper where there is showing that accused acted in bad faith
(Nagrampa vs. People, G.R. No. 146211, August 6, 2002) or where the accused refused to present
evidence on his behalf and appealed the decision to reduce the penalty to fine (Magdayao vs. People,
G.R. No. 152881, August 17, 2004); or where the accused committed multiple violations of BP Blg. 22
(Lim vs. People, G.R. No. 143231, October 26, 2001); or where the accused is at large (De Joya vs.
The Jail Warden of Batangas City, G.R. No. 159418, December 10, 2003).

RULE AGAINST DOUBLE


PROSECUTION
MB CAMPANILLA·WEDNESDAY, 2 NOVEMBER 2016

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

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

Incidental Deprivation of Liberty


MB CAMPANILLA·WEDNESDAY, 2 NOVEMBER 2016

It is basic that for kidnapping to exist, there must be indubitable proof that the actual intent of the
malefactor was to deprive the offended party of her liberty (People vs. Godoy, G.R. Nos. 115908-09,
December 6, 1995). If the deprivation of liberty is incidental to the commission of other crime, the
latter absorbs the former (See: People vs. Delim, G.R. No. 142773, January 28, 2003).

For example, if the main criminal intention of the offenders is to kill the victim, and the deprivation of
his liberty is just incidental to the transportation of the victim to the place where he would be killed, the
crime committed is murder, which absorbed kidnapping and serious illegal detention (People vs.
Estacio Jr., Gr No. 171655, July 22, 2009).

If the principal intention of the offenders is to rob the victims, and the deprivation of their liberty is just
incidental to the prevention of the responding police officers from arresting them, the crime committed
is robbery, which absorbed kidnapping and serious illegal detention (People vs. Astor, G.R. Nos. L-
71765-66, 29 April 1987).

If the principal intention of the offender is to rape the victim, and the deprivation of her liberty is just
incidental to the prolonged sexual intercourse, which lasted for two hours, the crime committed is rape,
which absorbed kidnapping and serious illegal detention (People vs. Nuguid, G.R. No. 148991, January
21, 2004).

If the principal intention of the offender is to coerce victim to reveal the whereabouts of an affidavit
and deprivation of liberty is just incidental to the demand to produce the same, the crime committed is
coercion, which absorbed serious illegal detention (People vs. Villamar, G.R. No. 121175, November
4, 1998).

Reversion of the Bon principle


MB CAMPANILLA·SUNDAY, 22 MAY 2016
Death shall be excluded from the scale of graduated penalties under Article 71 of the Revised Penal
Code pursuant to RA No. 9346 (People vs. Bon, G.R. No. 166401, 30 October 2006). For example, the
accused is convicted of attempted qualified rape. The penalty for qualified rape is death. However, RA
No. 9346 has excluded death penalty from the scale of graduated penalties in Article 71. Hence,
reclusion perpetua, which is now the highest penalty, shall be considered for purpose of graduation.
Since the crime merely reached the attempted stage, reclusion perpetua shall be reduced to two degrees
lower, and that is prison mayor (People vs. Bon, supra).

People vs. Abellera, G.R. NO. 166617, July 03, 2007 and People vs. Brioso, G.R. No. 182517, March
13, 2009 reaffirmed the Bon doctrine.

However, in People vs. Sarcia, G.R. No. 169641, September 10 2009, the Supreme Court ruled that for
purposes of graduating penalty, the penalty of death is still the penalty to be reckoned with. In sum,
death penalty is not excluded from the scale of graduated penalties. This was an abandonment of the
Bon principle. In People vs. Jacinto, G.R. No. 182239, March 16, 2011, through Justice Perez the
Supreme Court rejected the application the Bon principle and reaffirmed the Sarcia rule.

But in People vs. Gambao, G.R. No. 172707, October 1, 2013, the Supreme Court, En Banc also
through Justice Perez reverted back to the Bon doctrine.

Indeterminable Penalty
MB CAMPANILLA·TUESDAY, 31 MAY 2016

Under Section 1 Act No. 4103, in imposing a “prision sentence” for a felony, the court shall sentence
the accused to an indeterminate sentence. Indeterminate Sentence Law is not applicable if the penalty is
fine, destierro, rehabilitation (Section 15 of RA No. 9165), suspension or disqualification since they are
not prision sentence.In Rodillas vs. the Hon. Sandiganbayan, G.R. No. 58652, May 20, 1988, the
Supreme Court imposed a straight penalty of temporary disqualification of 8 years and 1 day.
InManipon vs. Sandiganbayan, G.R. No. 58889, July 31, 1986, the Sandiganbayanimposed a straight
penalty of temporary disqualification for 8 years and 1 day. In both cases, the Supreme Court affirmed
the penalty.

However, in Dulpovs Hon. Sandiganbayan, G.R. No. 74652, May 21, 1987, the Supreme Court En
Banc affirmed the penalty imposed by the Sandiganbayan, which is temporary disqualification of for a
period ranging from 10 years, 8 months and 1 day, as minimum, to 16 years, 8 months and 1 day, as
maximum.In Concepcion vs. People, G.R. No. 73854, May 09, 1989, the Supreme Court affirmed
penalty of temporary disqualification of from 6 years and 1 day to 10 years and 1 day. It is submitted
the indeterminate penalty of disqualification imposed in Dulpocase, and Concepcion case is not in
accordance with the law. Indeterminate penalty of disqualification is not applicable since the penalty of
disqualification is not a prision sentence.

In Perlas vs. People, G.R. Nos. 84637-39, August 02, 1989, the Supreme Court properly ruled that the
additional penalty of temporary disqualification under Article 214 of the Revised Penal Code should be
a straight term. The temporary disqualification of 11 years and 1 day to 12 years and 4 months imposed
by the Sandiganbaan was modified by the Supreme Court. It imposed the straight penalty of temporary
disqualification of 12 years.

Since the Perlascase is subsequently rendered by the Supreme Court, En Banc, the rule in Dulpocase
and Concepcion case which allows indeterminate penalty of disqualification is deemed abandoned.

BAILABLE PENALTY OF RECLUSION


PERPETUA
MB CAMPANILLA·WEDNESDAY, 28 JUNE 2017

Under Article III, Section 13 of the Constitution, all persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable
by sufficient sureties, or be released on recognizance as may be provided by law. However, there are
crimes punishable by reclusion perpetua, and yet, they are bailable:

1. Crimes punishable by a penalty, of which reclusion perpetua is just a component, are bailable. For
example, the penalty prescribed for malversation where the amount involved exceeds P22,000 is
reclusion temporal in its maximum period to reclusion perpetua. Reclusion perpetua will be imposable
only in cases where evidence establishes after trial the presence of aggravating circumstance
contemplated in Article 63 of the Revised Penal Code, or the complex character thereof in accordance
with Article 48. In determining the bailability of a crime, the court shall consider not the imposable
penalty of reclusion perpetua but the penalty prescribed by law. Since the penalty prescribed by law is
“reclusion temporal in its maximum period to reclusion perpetua,” the crime is bailable (People vs.
Valdez, G.R. Nos. 216007-09, Dec. 8, 2015). In sum, to consider the crime as non-bailable, the
prescribed penalty must be purely reclusion perpetua (death penalty, reclusion perpetua to death, or life
imprisonment). With the Valdez principle, sexual abuse punishable by reclusion temporal in its medium
period to reclusion perpetua under Section 5 of RA No. 7610, illegal possession of dangerous drugs
punishable by imprisonment of 20 years and 1 day to life imprisonment under Section 11 (b) of RA No.
9165, and treason committed by a resident alien punishable by reclusion temporal to death under
Article 114 of the Revised Penal Code are now bailable.

2. Crimes punishable by reclusion perpetua committed by minor are bailable. In determining the
bailability of a crime, the court shall not consider the penalty to be actually imposed because the same
would require a consideration not only of the evidence of the commission of the crime but also
evidence of the aggravating and mitigating circumstances. Hence, circumstance (e.g. special mitigating
circumstances) that requires the reduction of penalty from reclusion perpetua to a bailable level shall be
disregarded in assessing whether bail is a matter of right unless such circumstance is established
without objection (Bravo vs. Borja, G.R. No. L-65228 February 18, 1985), or is alleged in the
information (e.g. frustrated murder alleged in the information is bailable). However, Section 34 of RA
No. 9344 provides that for purposes of recommending the amount of bail, the privileged mitigating
circumstance of minority shall be considered. For example, if a child in conflict with the law is charged
with murder, the prescribed penalty is reclusion perpetua to death while the penalty to be actually
imposed is reclusion temporal because of the privilege mitigating circumstance of minority. A child in
conflict with the law, who is charged with murder, shall be admitted to bail as a matter of right because
the imposable penalty is not reclusion perpetua.

3. Estafa through bouncing check punishable by reclusion perpetua under PD No. 818 is bailable. The
principal penalty for estafa though bouncing check is reclusion temporal where the amount involved is
more than P22,000 plus incremental penalty of for each additional 10,000 pesos. However, the
combination of the principal penalty and incremental penalty shall not exceed 30 years. If the penalty
exceeds 20 years, it shall be termed reclusion perpetua. However, reclusion perpetua under PD 818 is
not the prescribed penalty for the estafa through issuance of bouncing check, but merely describes the
penalty actually imposed on account of the amount of the fraud involved. For purposes of determining
the bailability of the crime, the court shall consider the reclusion temporal prescribed for estafa through
issuance of bouncing check and not reclusion perpetua imposable after combining the principal penalty
and incremental penalty. Since the penalty prescribed for this crime is not reclusion perpetua, this
crime is bailable (Cenzon vs. Santos, G.R. No. 164337, June 27, 2006).

Three faces of intent to kill


MB CAMPANILLA·WEDNESDAY, 5 JULY 2017

There are three concepts of intent to kill, to wit: (1) intent to kill as an element of murder or homicide;
(2) lack of intent to kill on the basis of which mitigating circumstance of praeter intentionem shall be
appreciated; and (3) intent to kill as a requisite of the qualifying circumstance of by means of fire,
explosion or poison.

Intent to kill is an element of homicide or murder. However, the significance of this intent varies
depending upon circumstance of the victim and the issue involved.

Where the offender with a bolo or knife hacked or stabbed the victim, or fired his gun at him without
hitting or killing him, the crime committed is attempted or frustrated homicide or murder if there is
intent to kill (People vs. Kalalo, G.R. No. 39303, March 17, 1934). But if the acts were perpetrated
without intent to kill, the crime committed is threat (U.S. vs. Simeon, G.R. No. 1603, April 15, 1904),
discharge of firearm (People vs. Agbuya, G.R. No. 36366-36368, September 23, 1932), physical
injuries (Roque vs. People, G.R. No. 193169, April 6, 2015) or discharge of firearm with physical
injuries (People vs. David, G. R. Nos. 39708, 39709, April 16, 1934).

Intent to kill is not presumed where the victim did not die. The prosecution must prove intent to kill
beyond reasonable doubt. Usually, the intent to kill is shown by the kind of weapon used by the
offender and the parts of the victim's body at which the weapon was aimed, as shown by the wounds
inflicted (Roque vs. People, supra).

If the offender intentionally inflicted injury upon the victim, who died as a consequence, intent to kill is
conclusively presumed. Hence, the crime committed is consummated homicide or murder. However,
the concept of intent to kill as an element of homicide or murder should not be confused with that of
lack of intent to kill, on the basis of which the mitigating circumstance of praeter intentionem shall be
appreciated. If the victim died as a consequence of a felonious act of violence employed by the
accused, intent to kill as an element of homicide or murder is conclusively presumed. Hence, lack of
intent to kill is not a defense in consummated homicide or murder. In such case, even if there is no
intent to kill, the crime is homicide or murder because with respect to crimes of personal violence, the
penal law looks particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. However, the mitigating circumstance of praeter
intentionem shall be appreciated since there is no intent to kill (Wacoy vs. People, G.R. No. 213792,
June 22, 2015).

Intent to kill is also a requisite to appreciate the qualifying circumstance of by means of fire, explosion
or poison. Under Article 248 of the Revised Penal Code, killing a person “by means of fire” is murder.
Killing another by means of fire presupposes that fire was used as a means to kill. There is no murder
qualified by the circumstance of by means of fire without intent to kill (People vs. Cedenio, G.R. No.
93485, June 27, 1994).

The accused out of fun used fire as means to inflict injury upon his friend, but the latter died as a
consequence. Intent to kill as an element of homicide is conclusively presumed. But the conclusive
presumption of intent to kill is not applicable for purpose of mitigation of criminal liability. Since there
is no intent to kill, praeter intentionem shall be appreciated as a mitigating circumstance. However, the
circumstance of “by means of fire” shall not qualify the killing to murder. The attendance of mitigating
circumstance of praeter intentionem excludes the appreciation of qualifying circumstance of by means
of fire. These two circumstances are incompatible since by means of fire as a qualifying circumstance
presupposes the presence of intent to kill while praeter intentionem requires the absence of intent to kill
(People vs. Pugay, G.R. No. 74324, November 17, 1988). The rule is the same with regards to murder
by means of poison, or explosion.

Under Article 248, killing a person “with treachery” is murder. Killing another with treachery does not
presuppose that treacherous means were employed to kill. The term “with” means that something is
accompanying something else. Thus, what is important to appreciate treachery is that the killing
perpetrated with treachery, although the treacherous mode was employed merely to inflict injury.

The accused, not intending to kill the victim, treacherously shot the victim while the victim was turning
his back to him. He aimed at and hit the victim only on the leg. The victim, however, died because of
loss of blood (1999 Bar Exam). The accused is liable for murder. Intent to kill as an element of murder
is conclusively presumed. But the conclusive presumption of intent to kill is not applicable for purpose
of mitigation. Since there is no intent to kill, praeter intentionem shall be appreciated as a mitigating
circumstance. Because the act was committed with treachery, the accused although he did not intend to
kill the deceased is guilty of murder (People vs. Abejuela, G.R. No. L-32702, August 6, 1979). There is
no incompatibility between treachery and the praeter intentionem since the former refers to the manner
of execution of the crime while the latter pertains to intention of the accused not to kill the victim
(People vs. Cagoco, G.R. No. 38511, October 6, 1933).