2018 BAR REVIEWER BY JUDGE MARLO B.

CAMPANILLA

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

1. Territoriality – The ground occupied by US embassy is in fact the territory of the USA
to which the premises belong through possession or ownership. A person who committed a crime
within the premises of an embassy will be prosecuted under the law of Philippines because of
the principle of territoriality (Reagan vs. Commission on Internal Revenue, 30 SCRA 968).

a. Effects - For purpose of venue and territoriality principle in Article 2 of the Revised
Penal Code, the place of commission of the criminal act and the place of occurrence of the effect
of such act which is an element of the offense shall be considered. If one pulled the trigger of his
gun in Quezon City and hit the victim in manila who died as a consequence, Quezon City and
manila, which are the places of commission of the criminal act and the occurrence of the criminal
effect, are proper venues. If the psychological violence consisting of marital infidelity punishable
under RA No. 9262 is committed in a foreign land but the psychological effect occurred in the
Philippines since the wife and the children of the respondent, who suffered mental anguish, are
residing in the Philippines, our court can assume jurisdiction (see: AAA vs. BBB, G.R. no.
212448, January 11, 2018). However, if the commission of the criminal act consummates the
crime and the effect thereof is not an element of the crime, the place of occurrence of the effect
shall not be considered for purpose of venue and territoriality rule. Bigamy committed in a foreign
land is beyond the jurisdiction of our court although the offended spouse is residing in the
Philippines since the psychological effect of bigamy to him/her is not an element thereof.

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

c. Regime of islands - Under the principle of territoriality, the court has also jurisdiction
over crime committed in Kalayaan Islands or Scarboruogh Shoal because the Baseline Law (RA
No. 9522) declares that the Philippines exercise sovereignty and jurisdiction over it.

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

3. Decriminalization - RA No. 10158 has decriminalized vagrancy by omitting portions

of Article 202 of RPC involving this crime. Vagrants are victims of poverty and that the law on
vagrancy serves to oppress the very people that the government sought to protect. RA No. 10655
has decriminalized premature marriage by repealing Article 351 of RPC. This provision is
discriminatory because it is not applicable to men. Moreover, Article 351, which was sought to
prevent a possible confusion as to who is the father of the child born within the period of 301
days after the dissolution of the marriage, is not anymore necessary since paternity and filiation
can now be easily determined through modern technology.

4. Corpus delicti - Corpus delicti refers to the fact of the commission of the crime
charged or to the body or substance of the crime. In its legal sense, it does not refer to the
ransom money in the crime of kidnapping for ransom or to the body of the person murdered or
the weapons used in the commission of robbery with homicide (People vs. Torres, G.R. No.
189850, September 22, 2014, J. Del Castillo).

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

there are armed rebels on board a vehicle, have the duty to validate the information, identify
them, and to make a bloodless arrest unless they were placed in real mortal danger. If they shot

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the suspected vehicle, which did not stop after have been flagged down and killed the occupants
therein, who turned out be unarmed civilians, they are liable for multiple homicides. The mistake
of fact principle is not applicable since there is negligence or bad faith on their part (Yapyucu vs.
Sandiganbayan, GR No. 120744-46, June 25, 2012).

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

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

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

If the victim accidentally killed is the owner, driver or occupant of the carnapped motor
vehicle, the crime committed is qualified carnapping or carnapping in the aggravated form under
Section 3 of RA No. 10883.

To prove the special complex crime of carnapping with homicide, there must be proof not
only of the essential elements of carnapping, but also that it was the original criminal design of
the culprit and the killing of owner, driver or occupant of the vehicle was perpetrated in the
course of the commission of the carnapping (People vs. Mallari, G.R. No. 179041, April 1, 2013,
J. Del Castillo).

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

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

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

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

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

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

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

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

10. Self-defense - For unlawful aggression to be appreciated, there must be an "actual,

sudden and unexpected attack, or imminent danger thereof, not merely a threatening or
intimidating attitude" and the accused must present proof of positively strong act of real
aggression. For this reason, Danny’s observation that one of the men was pulling an object from
his waist is not a convincing proof of unlawful aggression. Threat, even if made with a weapon
or the belief that a person was about to be attacked, is not sufficient. An intimidating or
threatening attitude is by no means enough. In this case, other than the self-serving allegation
of Danny, there is no evidence sufficiently clear and convincing that the victim indeed attacked
him (People v. Campos, G.R. No. 176061 July 4, 2011, J. Del Castillo).

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

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

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

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

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

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

Under Section 5 (b) of RA No 7610, when the child subjected to sexual abuse is under
12 years of age, the perpetrators shall be prosecuted for rape and acts of lasciviousness under
RPC. For purpose of Section 5 (b), there is no difference between actual age and mental age.
Hence, the victim whose actual age is 12 years old but her mental age is 9 years old, is considered
as a victim under 12 year of age within the contemplation of Section 5 (b) (People vs. Pusing,
G.R. No. 208009, July 11, 2016),

In exempting circumstance, there is a difference between actual age and mental age. In
exempting circumstance of imbecility, what is important is the mental age of the accused. An

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

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

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

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

2. If the accused is 15 years of age or below but above 12 years, shall be considered as a
neglected child. Neglected child shall be mandatorily placed in a youth care facility or Bahay Pag-
asa in the following instances: (a) If the child commits serious crimes such as parricide, murder,
infanticide, rape, kidnapping and serious illegal detention with homicide or rape, robbery with
homicide or rape, destructive arson, or carnapping where the driver or occupant is killed or raped
or offenses involving dangerous drugs punishable by more than 12 years of imprisonment; and
(b) In case of repetition of offenses and the child was previously subjected to a intervention
program and his best interest requires involuntarily commitment.

In case of commission of serious crime, a petition for involuntarily commitment shall be

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

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

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

3. If the accused is an adult, application for probation must be filed within the period of
perfecting an appeal (Section 4 of PD No. 968 or 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).

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

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 5. A convict is entitled to a full or 4/5 credit of his preventive imprisonment (Article 29 of
RPC). However, if the convict is a child in conflict with the law, he shall be credited in the services
of his sentence the full time spent in actual commitment and detention (Section 41, RA 9344;
Atizado vs. People, G.R. No. 173822, October 13, 2010).

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

15. Exempting circumstance of relationship - The absolutory cause of relationship

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

16. Mitigating circumstance - Mitigating circumstance of praeter intentionem cane be

appreciated when there is a notable disparity between the means employed by the accused to
commit a wrong and the resulting crime committed. The intention of the accused at the time of
the commission of the crime is manifested from the weapon used, the mode of attack employed,
and the injury sustained by the victim (People vs. Buenamer, G.R. No. 206227, August 31,
2016).

Accused punched the victim twice causing him to fall to the ground, and lost
consciousness. Thereafter, the victim died. The argument of the accused that that he should be
held liable only for reckless imprudence resulting in homicide due to the absence of intent to
kill victim is untenable. When death resulted, even if there was no intent to kill, the crime is
homicide, not just physical injuries, since with respect to crimes of personal violence, the penal
law looks particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof. Under Article 4 of RPC, a person is liable for
committing a felony although the wrongful act done be different from that which he intended.
However, the mitigating circumstance of no intention to commit so grave a wrong as that
committed, was appreciated (Seguritan vs. People, G.R. No. 172896 April 19, 2010, J. Del
Castillo).

17. Aggravating circumstances - The aggravating circumstance of dwelling should be

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

Covering his face with a bonnet during the shooting incident conceal his identity
constitutes disguise as an aggravating circumstance (People vs. Tirso, G.R. No. 214757, March
29, 2017).

In robbery with violence and intimidation against persons, dwelling is aggravating

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

Treachery is not a qualifying circumstance but "a generic aggravating circumstance to

robbery with homicide although said crime is classified as a crime against property (People vs.
Baron, G.R. No. 185209 June 28, 2010, J. Del Castillo). When abuse of superior strength
obtains in the special complex crime of robbery with homicide, it is to be regarded as a generic
circumstance, robbery with homicide being a composite crime with its own definition and special
penalty in the Revised Penal Code (People vs. Torres, G.R. No. 189850, September 22, 2014, J.
Del Castillo).

18. Exploitation of minor –The special aggravating circumstance of exploitation of minor

under RA No. 9344is present if the accused makes use, takes advantage of, or profits from the
use of children, or abuses his authority over the child or takes advantage of the vulnerabilities

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of the child with abuse of confidence or induce, threaten or instigate the commission of the crime.
The concept of exploitation of children is comprehensive enough to cover the circumstance of
with the aid of minor under 15 years of age under RPC.

19. Offense under special law - B.P. Blg. 22 does not expressly proscribe the
supplementary application of the provisions RPC including the rule on conspiracy. Hence, such
rule may be applied supplementarily. Thus, a non-issuer of bum check can be held liable for
violation of BP Blg. 22 on the basis of conspiracy. (Ladonga vs. People, G.R. No. 141066, February
17, 2005). The principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as
mother-in-law), who has no marital, sexual or dating relationship with the victim, can be held
liable for violence against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852,
September 30, 2008)

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

Mayor, treasurer and planning coordinator approved the overpayments in favor of a

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

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

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

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

In Lim vs. People, G.R. No. 211977, October 12, 2016, the clearance stated in Section 6
of PD No. 1612 is only required if several conditions, are met: first, that the person, store,
establishment or entity is in the business of buying and selling of any good, articles item object,
or anything of value; second, that such thing of value was obtained from an unlicensed dealer or
supplier thereof; and third, that such thing of value is to be offered for sale to the public. In the
present case, the first and third requisites were not met. Nowhere was it established that
petitioner was engaged in the business of buy and sell. Neither was the prosecution able to
establish that petitioner intended to sell or was actually selling the subject grader to the public.

21. Obstruction of justice – Obstruction of justice can only be committed by a person

other than the one being investigated or tried in a criminal proceeding. Although this is not
expressly required in PD No. 1829 to make one liable for obstruction of justice, a principal himself
cannot be held liable for obstruction of justice (Angeles vs. Gaite, G.R No. 165276, November 25,
2009).

The criminal actor, who threw the body of murdered victim into the river to destroy the
corpus delicti, is liable for murder qualified by the circumstance of employment of means to
afford impunity. The one who assisted in in throwing the body is liable as an accessory to murder
for destroying the body of the crime to prevent its discovery (People vs. Devaras, G.R. Nos.

6
100938-39, December 15, 1993)or a principal in the crime of obstruction of justice for destroying
it to impair its availability as evidence in a criminal proceeding.

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

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

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

must be principal of the crime and the crime committed must be treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or other crime where act was committed with
abuse of public function or the principal is a habitual delinquent. To be held liable as a principal
in obstruction of justice, the one harbored, concealed, or assisted to escape is any person (such
as principal or accomplice)and the crime committed is “any offense under existing law.”

The exempting circumstance of relationship under Article 20 of RPC can be appreciated

in favor of an accessory to a felony but not in favor of an accused in the crime of obstruction of
justice since he is being prosecuted as principal and not as an accessory.

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

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

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

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

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

c. Homicide component - In robbery with homicide, it is immaterial that the victim of

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

7
 The phrase “by reason of the rape” obviously conveys the notion that the killing is due
to the rape, which is the crime the offender originally designed to commit. The victim of the rape
is also the victim of the killing. In contrast, the phrase “on the occasion of the rape” as shown by
Senate deliberations refers to a killing that occurs immediately before or after,or during the
commission itself of the rape, where the victim of the homicide may be a person other than the
rape victim (People vs. Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R. No.
178321, October 5, 2011).

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

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

d. Violence or intimidation in taking the property - If the taking of property is not

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

e. Direct connection - After consummation of robbery, passengers reported the matter

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

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

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

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

23. Robbery by means of intimidation - In robbery with intimidation of persons, the

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

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

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

A store used as a house is not a dwelling for purpose of appreciating the aggravating
circumstance of disregard of dwelling. A dwelling must be a shelter exclusively used for rest and
comfort (US vs. Baguio, G.R. No. 5332, October 4, 1909). However, for purpose of trespass to

8
dwelling and robbery by using force upon thing, a store used as a house is a dwelling or
inhabited house (People vs. Tubog, G.R. No. L-26284, Nov. 17, 1926; People vs. Lamahang, G.R.
No. 43530, August 3, 1935). For purpose of robbery by using for upon thing committed inside
the store located at the first floor while the second floor is used as a dwelling, a store shall be
considered as a dependency of an inhabited house (U.S. vs. Ventura, G.R. No. L-13715, January
22, 1919). For purpose of robbery by using for upon thing committed inside the store, which is
not used as a house, the store shall be considered as a private building (Marquez vs. People,
G.R. No. 181138 December 3, 2012, J. Del Castillo).

The Information did not specify whether the robbery with force upon things was
committed in an inhabited house, or uninhabited house or private building. It merely stated
that accused committed the robbery by destroying the door lock of the stall. Hence, they can only
be convicted of the lesser crime of robbery in a private building (Marquez vs. People, G.R. No.
181138 December 3, 2012, J. Del Castillo).

Under Article 299 or Article 302, entry into the building is an essential element of robb
ery by using force upon anything. Such entry can be made by actual force such as breaking th
e window or constructive force such as by means of simulation of authority or using false nam
e. Using picklock or similar tools to gain entry into a building is also a mode of committing rob
bery 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; unless the car has comfort room,
kitchen etc). Thus, taking car stereo after breaking the window of the
motor vehicle is not robbery by using force upon anything.

Such taking constitutes of the crime of simple theft under Article 309 of the Revised Pe
nal Code. In People vs. Jaranilla, L-28547, February 24, 1974, taking the roaster after breaking
the chicken coop, which is not a building, is simple theft.

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

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

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

b. Variance rule - The body of the information charged the accused of compound crime
with murder and attempted murder since two victims were hit by a single shot. The evidence
shows that murder and attempted murder are separate crimes since the two victims were hit by
several shot. Under the variance rule, if the crime alleged in the information varies with the crime
proven with evidence, the accused shall be convicted of the crime alleged or proven whichever

9
the lesser. Thus, accused shall be convicted of complex crime, which is lesser compared to two
crimes (People vs. Bernardo, GR No. 198789, June 03, 2013).

c. Several acts - Several acts in killing several victims do not constitute a compound
crime. Article 48 requires a single act constituting two or more crimes (People vs. Toling, G.R.
No. L-27097, January 17, 1975). Exceptions: Several acts in killing several victims under a single
criminal impulse (People vs. Lawas, L-7618-20, June 30, 1955) or under single criminal purpose
(People vs. Abella, G.R. No. L-32205 August 31, 1979) shall be considered as a single act. Hence,
it is a compound crime.

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

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

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

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

If forcible abduction is a necessary means to commit rape, this is a complex crime proper
under Article 48 of RPC. However, if multiple rapes were committed, forcible abduction will be
considered as a necessary means to commit the first rape but not the subsequent rape. Hence,
with respect to the first rape, the crime committed is complex crime of rape though forcible
abduction while the subsequent rapes will be treated as separate crimes (People vs. Jose, G.R.
No. L-28232, February 6, 1971; People vs. Buhos, G.R. No. L-40995, June 25, 1980; People vs.
Tami, G.R. Nos. 101801-03, May 02, 1995; People vs. Garcia, G.R. No. 141125, February 28,
2002, En Banc; People vs. Amaro, G.R. No. 199100, July 18, 2014).

As a rule, forcible abduction is an indispensable means to commit rape; hence, the latter
absorbs the former. However, if the victim was brought in a house or motel or in a place with
considerable distance from the place where she was abducted, forcible abduction will be
considered as a necessary means to commit rape; hence, the crime committed is complex crime
proper.

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

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

If the accused was molesting the victim immediately upon abduction, that is proof that
abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by
accused, the victim became dizzy and thereafter, she passed out. When she regained
consciousness, she notices that she and accused are naked inside a room. She was raped and

10
detained for 6 days. The crime committed is rape through forcible abduction (People vs. Amaro,
G.R. No. 199100, July 18, 2014).

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

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

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

Membership in CPP-NPA alone will not establish political motivation behind the killing
for purpose of convicting the killers for rebellion (People vs. Lovedioro, G.R. No. 112235,
November 29, 1995; People vs. Solongan, G.R. No. 137182, April 24, 2003). But membership in
a liquidation squad and killing a government officer is sufficient to establish political motivation
(People v. Dasig, G.R. No. 100231. April 28, 1993).

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

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

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

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

b. Incidental deprivation of liberty - If the principal intention of the offenders is to rob

the victims, and the deprivation of their liberty is just incidental to the prevention of the
responding police officers from arresting them, the crime committed is robbery, which absorbed
kidnapping and serious illegal detention (People vs. Astor, G.R. Nos. L-71765-66, 29 April 1987).
If the accused committed robbery, but thereafter, they detained the victims to demand additional
money, and later forestall their capture by the police, the crime committed is complex crime of
robbery through kidnapping and serious illegal detention. The detention was availed of as a
means of insuring the consummation of the robbery. The detention was not merely a matter of

11
restraint to enable the malefactors to escape, but deliberate as a means of extortion for an
additional amount. Hence, the Astor principle is not applicable (People vs. Salvilla, G.R. No.
86163 April 26, 1990). If the accused committed robbery by band, but thereafter, they took one
of the victims and detained him for seven days in another place for purpose of demanding
ransom, they are liable of separate crimes of robbery by band and kidnapping for ransom (People
vs. Basao, G.R. No. 189820, October 10, 2012).

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

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

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

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

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

33. Reclusion perpetua - Reclusion perpetua, which has duration of 40 years under
Article 27 of RPC and 30 years under Article 29 of RPC as amended by RA No. 10592 if the
convict has undergone preventive imprisonment, is a lighter penalty than life imprisonment,
which has no duration. Amendatory law, which prescribes reclusion perpetua instead of life
imprisonment, shall be given a retroactive effect for being favorable to the accused (People vs.
Morilla, GR No. 189833, February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229 October
19, 2011, J. Del Castillo).

Reclusion perpetua, which has duration of 40 years under Article 27 of RPC and 30
years under Article 29 of RPC as amended by RA No. 10592 if the convict has undergone
preventive imprisonment, is a lighter penalty than life imprisonment, which has no duration.
Amendatory law, which prescribes reclusion perpetua instead of life imprisonment, shall be
given a retroactive effect for being favorable to the accused (People vs. Morilla, GR No. 189833,
February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229 October 19, 2011, J. Del Castillo).

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

35. Mandatory application of the Islaw - The application of the Indeterminate Sentence
Law is mandatory to both the Revised Penal Code and the special laws (Romero vs. People, G.R.
No. 171644, November 23, 2011). However, the Supreme Court, in People vs. Nang Kay, G. R.

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

36. Adoption of the technical nomenclature of the Spanish penalty - RPC is not
generally applicable to malum prohibitum. However, when a special law, which punishes malum
prohibitum, adopts the technical nomenclature of the penalties in RPC, the provisions under this
Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994) such as: (1) Article 68 on the
privilege mitigating circumstance of minority; (2) Article 64 on application of penalty in its
minimum period if there is a confession; and (3) Article 160 on special aggravating circumstance
of quasi-recidivism.

RA No. 7080 and RA No. 10591 adopt the nomenclature of the penalties in RPC. Hence,
minority, confession (Jacaban vs. People, GR No. 184355, March 23, 2015; Malto vs. People,
G.R. No. 164733, September 21, 2007) or quasi-recidivisim shall be considered in plunder and
illegal possession of loose firearm.

Under Section 98 of RA No. 9165, the provisions of RPC shall not apply except in the case
of minor offenders. Hence, if the accused is a minor, privilege mitigating circumstance of minority
(People vs. Montalaba, G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735,
October 24, 2012Asiatico vs. People, G.R. No. 195005, September 12, 2011), confession or quasi-
recidivisim (People vs. Salazar, G.R. No. 98060, January 27, 1997) shall be considered in crime
involving dangerous drugs. In this case, life imprisonment shall be considered as reclusion
perpetua. If the accused is an adult, these circumstances shall not be appreciated.

If the special law (such as RA No. 6235 on hijacking and RA No. 3019 on corruption) did
not adopt the technical nomenclature of penalties in RPC, the latter shall not apply. Mitigating
circumstance of confession shall not be appreciated since the penalty not borrowed from RPC
cannot be applied in its minimum period. The crime has not attempted or frustrated stage since
penalty not borrowed from RPC cannot be graduated one or two degrees lower.

Mitigating circumstance of old age can only be appreciated if the accused is over 70
years old at the time of the commission of the crime under RA No. 3019 and not at the time of
promulgation of judgement (People vs. Reyes, G.R. No. 177105-06, August 12, 2010). Moreover,
this the mitigating circumstance of old age cannot be appreciated in crime punishable by RA
No. 3019 since this law did not adopt the technical nomenclature of the penalties of the Revised
Penal Code.

The special aggravating circumstance of syndicated or organize crime group under

Article 62 of RPC cannot be appreciated in carnapping if the same is not alleged in the
information (People vs. Mallari, G.R. No. 179041, April 1, 2013, J. Del Castillo). However, even
this circumstance is alleged in the information and proven by evidence, the same shall not be
appreciated in carnaping since RA No. 10883, the new carnapping law, did not adopt the
technical nomenclature of the penalty under the Revised Penal Code (e.g. the penalty for simple
carnapping is not more than 20 years but not less than 30 years). Since the penalty is not
borrowed from the Code, it cannot be applied in its maximum period by taking into
consideration syndicated or organize crime group.

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

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

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 a. Reelection - Reelection to public office is not provided for in Article 89 of RPC as a
mode of extinguishing criminal liability incurred by a public officer prior to his reelection
(Oliveros vs. Villalulz, G.R. No. L-34636, May 30, 1974). But a re-elected public official could not
be removed for administrative offense committed during a prior term, since his re-election to
office operates as a condonation of his misconduct to the extent of cutting off the right to remove
him therefor (Aguinaldo vs. Santos, G.R. No. 94115 August 21, 1992). However, the doctrine of
condonation of administrative offense by reason of reelection has been abandoned for being
inconsistent to Section 1, Article X1 of the 1987 Constitution on public office is a public trust
and public accountability (Morales vs. CA and Binay, GR No. 217126-27, November 10, 2015).
However, the Morales principle should not be given a retroactive effect (Dinampilis vs. Comelec,
G.R. No. 227158, April 18, 2017).

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

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

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

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

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

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

a. Amnesty commission - Under Amnesty Proclamation no. 8, dated September 7, 1946

issued by President Roxas and concurred by Congress, declares amnesty in favor of persons,
who committed felony in furtherance of the resistance to the enemy during the Japanese
occupation. The proclamation tasked the Amnesty Commission to determine if the crime is
committed within the terms thereof. However, while the Commission can take cognizance of the
applications for amnesty, the courts are not excluded to decide any claim for amnesty. An
accused charged before the courts may claim amnesty as a defense, waive the filing of an
application therefor, and submit evidence thereof in the trial of his case (to prove that the crime
was committed in furtherance of the resistance to the enemy). In sum, while all applications
should be passed upon by commissions, an accused may, instead of filing an application, choose
the alternative remedy of just raising the issue in a court of justice in the trial of his case (People

14
vs. Macadaeg, G.R. No. L-4316, May 28, 1952). If a person opted to file an application for amnesty
with the commission, but he is unable to obtain his release through executive channels although
he is entitled to the benefits of this proclamation, it devolves on the courts to protect his right
(Tolentino vs. Catoy, G.R. No. L-2503, December 10, 1948).

b. Criminal extinction - Under Article 89 of the Revised Penal Code, amnesty totally
extinguishes criminal liability, the penalty for the crime and all its effects. However, if the
granting of benefit under amnesty proclamation is subject to a condition, the criminal extinction
will only occur upon happening of the condition and not upon the issuance of the proclamation
by the President, or concurrence of Congress.

Under Amnesty Proclamation no. 8, dated 1946, the amnesty covers crimes committed
in furtherance of resistance against the enemy as determined by the Commission. In Vera vs.
Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court ruled that the criminal
liability of the appellee had been completely extinguished by virtue of the amnesty extended to
him by Commission in 1956.

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

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

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

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

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

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

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

15
This principle of non-delegability of power is in conformity with the Latin maxim of “Potestas
delegata non potest delagari”, or delegated authority cannot be delegated. The basis of this
doctrine is the ethical principle that such a delegated power constitutes not only a right but a
duty that the delegate must perform through his own judgment without intervention from
another.

However, the principle of non-delegability of power is not an absolute rule. It is subject

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

Under Amnesty Proclamation no. 8, dated September 7, 1946 issued by President Roxas
and concurred by Congress, declares amnesty in favor of persons, who committed felony in
furtherance of the resistance to the enemy during the Japanese occupation. The proclamation
tasked the Amnesty Commission to determine if the crime is committed within the terms thereof.
In Vera vs. Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court recognized the
amnesty extended by the Commission to amnesty applicant.

42. Prescription – Prescription of crime is a mode of extinguishing criminal liability.

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

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

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

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

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

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

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

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

Revised Penal Code or a special law, the institution of judicial proceeding(e.g. filing of complaint
or information in court) or executive proceeding (e.g. filing of complaint for preliminary
investigation) interrupts the running of prescription such as the filing of complaint: (1) for
violation of BP Blg. 22 in the prosecutor’s office - People vs. Pangilinan, G.R. No. 152662, June
13, 2012;Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008; (2) for
violation of Revised Securities Act in Securities and Exchange Commission - SEC vs. Interport

16
Resources Corporation, G.R. No. 135808, October 6, 2008; or (3) violation of RA No. 3019 in the
Ombudsman - Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11,
2013.

The PCGG has no power to investigate cronies of Marcos for violation of RA No. 3019 not
involving ill-gotten wealth. Such investigation for being voidab initiowould not interrupt the
running of prescription (People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29,
2009).

If the crime is punishable by an ordinance, only the institution of judicial proceeding shall
interrupt its two-month prescriptive period. The provision in the Rules on Criminal Procedure
regarding the interruption of prescription by institution criminal action is not applicable to
violation of ordinance because it is covered by the Rules on Summary Procedure. Hence, the
filing of complaint involving violation of ordinance for preliminary investigation will not interrupt
the running of the prescription (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588,
October 7, 2013).

43. Probation -Probation shall suspend the execution of principal penalty of

imprisonment, and accessory penalty of disqualification (Villareal vs. People, G.R. No. 151258,
December 01, 2014) but not the implementation of the civil aspect of the judgment (Budlong, vs.
Palisok, GR No. 60151, June 24, 1983).

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

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

In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874, December 5, 2017, accused
was convicted of malversation and sentenced to suffer a penalty of 11 years, 6 months and 21
days of prision mayor, which is non-probationable. The judgment becomes final prior to the
effectivity of RA No. 10951. Under Article 217 of the Revised Penal Code as amended by RA No.
10951, the penalty for malversation involving an amount of not exceeding P40,000 is only prision
correccional in its medium and maximum periods. Despite the immutability of a final judgment,
the Supreme Court reduced the penalty to 3 years, 6 months and 20 days of prision correccional
in accordance with RA No. 10951, which penalty is now probationable. It was stated that because
of RA No. 10951, not only must sentence of the accused be modified respecting the settled rule
on the retroactive effectivity of favorable laws, she may even apply for probation. In sum, applying
Section 4 of P.D. No. 968, as amended by R.A. No. 10707, since the judgment of conviction
imposing a non-probationable penalty is modified through the imposition of a probationable
penalty, she is now allowed to apply for probation based on the modified decision before such
decision becomes final.

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

The period of probation of a defendant sentenced to a term of imprisonment of not more

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

44. Piracy - Under Section 2(a) of PD 532, "Philippine waters" is defined as bodies of
water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the
Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension,
and all other waters belonging to the Philippines by historic or legal title, including territorial
sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has
sovereignty or jurisdiction. Thus, a river in a municipality is considered as part of Philippine
waters for purpose of piracy (People vs. Dela Pena, G.R. No. 219581, January 31, 2018, J. Del
Castillo).

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

17
the performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904;
U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).

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

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

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

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

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

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

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

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

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

18
 48. Murder or homicide - Firing his firearm at the residence of the victims, killing two
and inflicting injuries another murder and attempted murder qualified by the circumstance of
treachery (People vs. Tirso, G.R. No. 214757, March 29, 2017).

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. Hence, when a deadly weapon, like a bolo, is used to stab the victim in the latter’s
abdomen, the intent to kill can be presumed (Roque vs. People, G.R. No. 193169 April 6, 2015,
J. Del Castillo).

In parricide, if the victim is his parent or child, the relationship can either be legitimate or
illegitimate; if the victim is the spouse, grandparent or grandchild, the relationship must be
legitimate (People vs. Gamez, GR No. 202847, October 23, 2013; People v. Sales, G.R. No. 177218
October 3, 2011, J. Del Castillo). Relationship in parricide is by blood except where the victim
is spouse (Regalado). The qualifying circumstance of relationship in parricide is personal. Hence,
it can be appreciated against the wife but not against a co-conspirator, who is not related to her
husband, the victim (People vs. Bucsit G.R. No. 17865, March 15, 1922).

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

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

In abortion and infanticide, concealment of dishonor is a special mitigating circumstance

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

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

51. Death under exceptional circumstance -Death under exceptional circumstance is

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

Under Article 423 of the old Penal Code, death under exceptional circumstance is
committed if the husband surprised his wife in the act of adultery (en adulterio a su mujer).
Adultery under this Code is committed by a “married woman” who shall have sexual intercourse
with a “man” not her husband. The Revised Penal Code extended the benefit of the original Article
423 of the Penal Code to both husband and wife, and for this reason, the phrase “in the act of
adultery” was changed to “in the act of committing sexual intercourse.” (Opinion of Justice Laurel
in People v. Gonzales, G.R. No. 46310, October 31, 1939) Thus, the phrase “in the act of committing
sexual intercourse” in Article 247 of the Revised Penal Code should be interpreted within the
Spanish context of adulterio, which excludes homosexual intercourse between a wife and another
woman. (2016 Bar Exam)

A wife, who killed her husband after having surprised him in the act of sodomizing a gay,
is liable for parricide. This is not death under exceptional circumstance since “sodomizing” is

19
not within the contemplation of the term “sexual intercourse” in Article 247. However, passion
may be appreciated as a mitigating circumstance.

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

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

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

52. Death in a tumultuous affray -The elements of death caused in a tumultuous affray
are as follows: (a) that there be several persons; (b) that they did not compose groups organized
for the common purpose of assaulting and attacking each other reciprocally (Note: If there is
conspiracy, this element is not present; conspirators are liable for homicide or murder; People
vs. Corpuz, G.R. No. L-36234 February 10, 1981); (c) that these several persons quarreled and
assaulted one another in a confused and tumultuous manner; (d) that someone was killed in the
course of the affray; (e) that it cannot be ascertained who actually killed the deceased (Not: If the
killers are identified, this element is not present; since they are identified, they are liable for
homicide or murder; Wacoy vs. People, G.R. No. 213792, June 22, 2015); and (f) that the person
or persons who inflicted serious physical injuries or who used violence can be identified.

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

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

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

20
21
 The evidence of the prosecution failed to establish that Edwin had carnal knowledge of
AAA (4 years old). Michael's testimony did not show that Edwin had carnal knowledge with AAA.
He only testified that he saw Edwin holding AAA's vagina. Under the variance doctrine, even
though the crime charged against the accused was for rape through carnal knowledge, he can
be convicted of the crime of acts of lasciviousness committed against a child subjected to sexual
abuse under 12 years of age under the Revised Penal Code in relation to RA No. 7610 without
violating any of his constitutional rights because said crime is included in the crime of rape
(People vs. Dagsa, G.R. No. 219889, January 29, 2018).

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

c. Withdrawal of consent - If the female consents to have sexual intercourse with the
accused, but then withdraws her consent before penetration, and the act is accomplished by
force, it is rape (People vs. Butiong, G.R. No. 168932, October 19, 2011). However, if the female
tacitly consents to have sexual intercourse with the accused, but then withdraws her consent in
the course of sexual intercourse because she felt pain, and the act is not rape. It would be unfair
to convict a man of rape committed against a woman who, after giving him the impression thru
her unexplainable silence of her tacit consent and allowing him to have sexual contact with her,
changed her mind in the middle and charged him with rape (see: People vs. Tionloc, G.R. No.
212193, February 15, 2017, J. Del Castillo).

d. Tenacious resistance - Among the amendments of the law on rape introduced under
RA No. 8353 is Section 266-D, which provides “Any physical overt act manifesting resistance
against the act of rape in any degree from the offended party, or where the offended party is so
situated as to render her/him incapable of giving valid consent, may be accepted as evidence in
the prosecution rape” (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators
agreed that Article 266-D is intended to soften the jurisprudence on tenacious resistance (People
vs. Dulay, G.R. Nos. 144344-68, July 23, 2002). Indeed, failure to offer tenacious resistance
does not make the submission by the victim to the criminal acts of the accused voluntary. What
is necessary is that the force employed against her be sufficient to consummate the purpose
which he has in mind (People vs. Olesco, G.R. No. 174861 April 11, 2011, J. Del Castillo; People
vs. Nachor, G.R. No. 177779, December 14, 2010, J. Del Castillo). Failure to shout should not
be taken against the victim (People vs. Rivera, GR No. 200508, September 04, 2013; People vs.
Rubio, G.R. No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013).
It is not necessary for the victim to sustain physical injuries. She need not kick, bite, hit or
scratch the offender with her fingernails to prove that she had been defensive (People vs. Torres,
G.R. No. 134766, January 16, 2004). Well-settled is the rule that where the victim is threatened
with bodily injury, as when the rapist is armed with a deadly weapon, such as a pistol, knife,
ice pick or bolo, such constitutes intimidation sufficient to bring the victim to submission to the
lustful desires of the rapist (G.R. No. 176740 June 22, 2011, People v. Dumadag, J. Del
Castillo).

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

Knowledge of the mental disability of the victim is not an element of rape (People vs.
Caoile, GR No. 203041, June 5, 2013) but it is an ingredient of the qualifying circumstance of
mental disability, which must be alleged in the information (People vs. Obogne, GR No. 199740,
March 24, 2014; People vs. Lascano, G.R. No. 192180, March 21, 2012; People v. Madeo, G.R.
No. 176070 October 2, 2009, J. Del Castillo)

In qualifying circumstances of minority and relationship in rape and special aggravating

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

22
 f. Marital rape - Husband can be held liable for marital rape. Article 266-A of RPC uses
the term “man” in defining rape without regard to the rapist’s legal relationship with his victim.
Under Article 266-C of RPC, in case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party shall extinguish the criminal action. RA No. 8353
has eradicated the archaic notion that marital rape cannot exist because a husband has absolute
proprietary rights over his wife’s body and thus her consent to every act of sexual intimacy with
him is always obligatory or at least, presumed (People vs. Jumawan, G.R. No. 187495, April 21,
2014).

g. Pruna guidelines - The Pruna guidelines in appreciating age, either as an element of

the crime or as a qualifying circumstance, are as follows.

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

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

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

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

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is
that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is
that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is
that she is less than 18 years old.

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

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

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

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

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

i. Criminal touching - Touching of either labia majora or labia minora of the pudendum
of the victim by an erect penis of the accused capable of penetration consummates the crime
(People vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932,
October 19, 2011, Bersamin). Touching the labia by instrument or object (such as tongue or
finger) also consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No.
188897, June 6, 2011).

If the offender touches the body of the victim through force, without touching the labia of
her pudendum but with clear intention to have sexual intercourse, the crime committed is
attempted rape. Intent to have sexual intercourse is present if is shown that the erectile penis
of the accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08,
2014) or the accused actually commenced to force his penis into the victim's sexual organ (People
vs. Banzuela, G.R. No. 202060, December 11, 2013).

For there to be an attempted rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim but for some cause or accident other

23
than his own spontaneous desistance, the penetration, however, slight, is not completed (People
vs. Bandril, G.R. No. 212205, July 06, 2015).

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

In People vs. Dadulla, G. R. No. 172321, February 9, 2011, the accused's act of opening
the zipper and buttons of AAA's shorts, touching her, and trying to pull her from under the bed
manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent
to lie with AAA motivated the accused was plainly wanting, therefore, rendering him guilty only
of acts of lasciviousness

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

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

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

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

54. Perjury - Person cannot be held liable for perjury involving a complaint affidavit for
theft based on the execution of affidavit of desistance. There is no perjury solely on the basis of
two contradictory statements. The prosecution must additionally prove which of the two
statements is false and must show the statement to be false by evidence other than the
contradictory statement (U.S. vs. Capistrano 40 Phil. 902; Masangkay vs. People, G.R. No.
164443, June 18, 2010, J. Del Castillo).

In a verified answer, accused denied the allegation in the complaint for collection on his
loan obligation. He is not liable for perjury since verification is not required in answer in a civil
case. He cannot be prosecuted for perjury on the basis of an alleged falsehood made in a verified
pleading, which is not mandated by law to be verified (Saavedra, Jr. vs. Department of Justice,
G.R. No. 93178, September 15, 1993; Flordelis vs. Himalaloan, G.R. No. L-48088, July 31, 1978).

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

Making untruthful statement (failure to disclose previous criminal conviction) in a sworn

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

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

55. Falsification – Commercial documents such as promissory note and check are, in
general, documents or instruments which are "used by merchants or businessmen to promote
or facilitate trade or credit transactions (Tanenggee vs. People, G.R. No. 179448 June 26, 2013,
J. Del Castillo).

Falsification of a public document is consummated upon the execution of the false

document. What is punished in falsification of public document is principally the undermining

24
of the public faith and the destruction of truth as solemnly proclaimed therein. The fact that
accused did not benefit from, or that the public was not prejudiced by the falsified resolution is
not a defense (Goma vs. CA, G.R. No. 168437, January 08, 2009).

When the offender commits falsification of public, official or commercial document as a

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

When the offender commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to commit another crime like
estafa, theft or malversation, the two crimes form a complex crime proper (Tanenggee vs. People,
G.R. No. 179448 June 26, 2013, J. Del Castillo).

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

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

Presenting to the complainant a falsified BIR receipt to make it appears that accused
paid the capital gains tax for the real property bought by the former constitutes complex crime
of estafa through falsification of document (Pascual vs. People, G.R. No. 204873, July 27, 2016,
J. Del Castillo).

When the offender commits falsification of public, official or commercial document as a

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

If the falsification of a private document (demand letter, letter of guarantee) is

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

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

In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015, the Governor caused the
falsification of private letter requesting for financial assistance. He was able to use this falsified
private document to release public funds to a fictitious beneficiary. Applying Article 48, since
falsification of private document is a necessary means to commit malversation, he is liable for
complex crime of malversation through falsification of private document.

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

56. Malversation - For purpose of malversation, national officer shall be considered as

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

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

57. Failure to render an accounting - In People vs. Lumauig, G.R. No.166680, July 7,
2014, J. Del Castillo, the accused received cash advance for payment of the insurance coverage
of motorcycles purchased by the Municipality in 1994. Under COA Circular, accused is required
to liquidate the same within 20 days after the end of the year or on or before January 20, 1995.
To avoid criminal liability under Article 218 of the Revised Penal Code, he must liquidate the
cash advance within two months from January 20, 1995 or on or before March 20, 1995. The
accused was liable for failure to render account because it took him over six years before settling
his accounts. Demand before an accountable officer is held liable for a violation of the crime is
not required. Article 218 merely provides that the public officer be required by law and
regulation to render account.

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

Same as in malversation, return of the money in the amount in which the accountable
officer failed to render an accounting is a mitigating circumstance analogous to voluntary
surrender (People vs. Lumauig, G.R. No.166680, July 7, 2014, J. Del Castillo).

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

Demand is not an element of estafa through misappropriation. Demand is only important

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

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

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

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

The term "personal property" in RPC should be interpreted in the context of the Civil
Code. Consequently, any personal property, tangible or intangible, corporeal or incorporeal,
capable of appropriation can be the object of theft. Business may be appropriated under Bulk
Sales Law. Thus, the business of providing telecommunication and the telephone service is a

26
personal property (Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009). Since asportation is
not an element of theft, a personal property can to be the object of theft as along as it is capable
of appropriation although it is not capable of "asportation" (Medina vs. People, G.R. No. 182648,
June 17, 2015). Intangible property is not capable of asportation, and yet, it can be an object of
theft since is capable of asportation.

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

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

b. Qualified Theft - Theft becomes qualified when it is, among others, committed with
grave abuse of confidence. The grave abuse of confidence must be the result of the relation by
reason of dependence, guardianship, or vigilance, between the appellant and the offended party
that might create a high degree of confidence between them which the appellant abused (People
vs. Tanchanco, G.R. No. 177761 April 18, 2012, J. Del Castillo).

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

If the accused as an employee had no physical access to, or material possession of, the
stolen goods owned by his employer, the qualifying circumstance of abuse of confidence cannot
be appreciated. Making the property non-accessible to the employee is an indication that the
employer has no confidence on him that he will not steal the property (Viray vs. People, G.R.
No. 205180, November 11, 2013).

c. Value of the property - The value of jewelry is not a matter of public knowledge nor
is it capable of unquestionable demonstration and in the absence of receipts or any other
competent evidence besides the self-serving valuation (P1 million) made by the complainant,
the courts may either apply the lowest penalty under Article 309 or fix the value of the property
taken based on the attendant circumstances of the case. In this case, the court imposed the
lowest penalty (People vs. Mejares, G.R. No. 225735, January 10, 2018).

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

60. Theft through misappropriation

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

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

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

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

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

In US vs. Clarin, G.R. No. 5840, September 17, 1910, four individuals entered into a
contract of partnership for the business of buying and selling mangoes. When one of the partners
demanded from the other three the return of his monetary contribution, the Supreme Court ruled
that "the action that lies with the capitalist partner for the recovery of his money is not a criminal
action for estafa, but a civil one arising from the partnership contract for a liquidation of the
partnership and a levy on its assets, if there should be any. Simply put, if a partner demands
his money back, the duty to return the contribution does not devolve on the other partners; the
duty now belongs to the partnership itself as a separate and distinct personality.

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

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

c. Ownership - If the accused received the property with the consent of the owner and
he acquired ownership in doing so by virtue of a contract such as sale, mutuum or loan, failure
to perform obligation under such contract is neither theft nor estafa since the same is purely
civil in character (People vs. Montemayor, G.R. No. L-17449, August 30, 1962).

d. Receiving the property through deceit - If the accused received the property
through deceit but he merely acquired physical possession in doing so, misappropriation shall
be considered as taking without consent; hence, the crime committed is theft (People vs.
Maglaya, L-29243, November 28, 1969, L-29243). If the bank president received bank fund
through deceit by using falsified loan documents with fictitious borrower, and misappropriated
the money, he is liable for complex crime of complex crime of estafa through misappropriation
through falsification of commercial documents. His possession over the funds is legal. He did
not acquired ownership over the property since he is holding the bank fund under trust or
administration in his fiduciary capacity (People vs. Go, G.R. No. 191015, August 06, 2014, J.
Del Castillo; Soriano v. People, G.R. No. 162336 February 1, 2010, J. Del Castillo). If a bank
manager received bank fund through deceit by using falsified promissory note with fictitious

28
borrower and falsified endorsement on the check issued by the bank, he is liable for complex
crime of estafa through false pretense through falsification of commercial documents (Tanenggee
v. People, G.R. No. 179448, June 26, 2013, J. Del Castillo). If a bank employee stole blank
cashier check, falsified the authorized signatory of the check, and received money from the bank
through deceit by presenting the falsified check for encashment, he is liable for complex crime
of qualified theft through falsification of commercial document. Deceit shall be considered as a
continuation and natural development of the theft, which was previously committed (People vs.
Salonga, G.R. No. 131131, June 21, 2001).

The bank president in addition to the charge of estafa by misappropriation through

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

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

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

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

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

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

62. Bigamy – After the consummation of the crime of bigamy, declaration of nullity of
first marriage and/or second marriage is not a defense on the following grounds:

First ground - After the consummation of bigamy, subsequent declaration of nullity of

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

Bigamy is consummated upon contracting second marriage despite the subsistence of

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

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

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

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

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

Exceptions:

1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079, the second
marriage was celebrated one day before the issuance of the marriage license. In this situation,
the accused can use the voidness of the second marriage as a defense in bigamy. The accused
did not cause the falsification of public documents in order to contract a second marriage. He
did not fraudulently secure a Certificate of Marriage, and later used this criminal act as basis for
seeking her exculpation. The crime committed is not bigamy under Article 349 (Santiago vs.
People, G.R. No. 200233, July 15, 2015) but marriage contracted against the provisions of the
law under Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955).

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

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

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

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

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

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

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.

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

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

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

The billboards erected by accused simply say "CADIZ FOREVER", "BADING AND SAGAY
NEVER". According to complainant, Mayor of Cadiz, whose nickname is bading, the statement
portrayed him as tuta of the City of Sagay. According to the Supreme Court, there is nothing in
the subject billboards which state, either directly or indirectly, that he is a "tuta" or "puppet" of
Sagay City. Except for complainant, not a single prosecution witness testified that the billboards
portray him as a "tuta or "puppet" of Sagay City. The controversial statement embarrassed the
complainant. But embarrassment is not automatically equivalent to defamation. Words, which
are merely insulting or offensive, are not actionable as libel or slander per se. A public official
may be attacked, rightly or wrongly. He may suffer under a hostile and an unjust accusation
for an act committed in connection with his public function. But he must not be too thin-
skinned with reference to comments upon his official acts (Lopez vs. People, G.R. No. 172203
February 14, 2011, J. Del Castillo).

In Manila Bulletin Publishing Corporation vs. Domingo, G.R. No. 170341, July 5, 2017,
the accused published an article where he stated that these national employees should be
commended for bringing into the open this garbage that has piled up in their own backyard. To
Joe Con's successor, the chopping board is ready. All you need is a Muslim kris! Palakulin mo,
Pare ko!. This is not libelous. On the first statement, accused is merely commending the DTI
employees who brought into the open their complaints against the private complainant in this
case, a DTI officer. This is a fair remark. The last three sentences merely meant that heads
should roll at the DTI office, which does not ascribe something deprecating against complainant.
Moreover, the statement does not refer to an ascertained or ascertainable person.

In Belen vs. People,G.R. No. 211120, February 13, 2017, accused filed a motion for
reconsideration of resolution dismissing a complaint for estafa with irrelevant and defamatory
statement against the investigating prosecutor was filed with the OCP of San Pablo City and
copy furnished to the respondent in the estafa complaint, and the Office of the Secretary of
Justice. Despite the fact that the motion was contained in sealed envelopes, it is not
unreasonable to expect that persons other than the one defamed would be able to read the
defamatory statements in it. Hence, the element of publicity in libel is present.

In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a motion for
reconsideration of resolution dismissing a complaint for estafa. The accused alleged in the said
motion the public prosecutor who dismissed the case is corrupt, stupid, imbecile, mentally
dishonest and bereft of intellectual ability. This is not covered by the absolute privilege
communication rule since the defamatory allegations in the motion are not relevant to the issue
of whether or not the motion for reconsideration should be granted because there is probable
cause to charge the respondent in the preliminary investigation for estafa.

Before a statement would come within the ambit of a privileged communication, it must
be established that: "1) the person who made the communication had a legal, moral or social
duty to make the communication, or at least, had an interest to protect, which interest may
either be his own or of the one to whom it is made; 2) the communication is addressed to an
officer or a board, or superior, having some interest or duty in the matter, and who has the
power to furnish the protection sought: and 3) the statements in the communication are made
in good faith and without malice."
In the instant case, accused addressed the memorandum pertaining to the mental condition of
the complainant not only to the Plant Manager but also to the staff of HPP. Undoubtedly, the
staff of HPP were not accused's superiors vested with the power of supervision over the
complainant. They do not have the power to furnish the protection sought. Though private
respondent is a public officer, certainly, the defamatory remarks are not related or relevant to
the discharge of her official duties but was purely an attack on her mental condition which
adversely reflect on her reputation and dignity (Lagaya vs. People G.R. No. 176251, July 25,
2012, J. Del Castillo).

65. Incriminating an innocent person - As a general rule, planting of evidence to

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

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

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

Planting of live bullet by NAIA personnel to extort money from a passenger of an airline
constitutes separate crime of planting of evidence and consummated or attempted robbery.

66. Imprudence or negligence – To make a doctor liable for reckless imprudence

resulting to homicide, it must be shown that he did not treat his patient in accordance with the
standard of care and skill commonly possessed and exercised by similar specialists under similar
circumstances. Failure to present specialist as witness to testify on this standard is fatal to the
prosecution of the case (Solidum vs. People, GR No. 192123, March 10, 2014, Bersamin).

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

First view: Culpa under Article 3 of the Revised Penal Code is not a crime but just a
mode of committing a crime. Applying this rule, there are three crimes committed, to wit: (1)
reckless imprudence resulting in homicide, (2) reckless imprudence resulting in damage to
property and (3) reckless imprudence resulting in slight physical injuries. However, single
reckless act resulting in homicide and damage to property is a complex crime (Angeles vs. Jose,
G.R. No. L-6494, November. 24, 1954). But the slight physical injuries that resulted from the
same recklessness shall be treated as a separate crime. Since this is a light felony, it cannot be
made a component of a complex crime (Lontoc, Jr. vs. Gorgonio, L37396, April 30, 1979; People
vs. Turla, G.R. No. L-26388, February 14, 1927; Gonzaga vs. People, G.R. No. 195671, Jan. 21,
2015; 1983, 2011, and 2012 Bar Exams).

Under this view, the motion to quash shall be denied because reckless imprudence
resulting in slight physical injuries and the complex crime of reckless imprudence resulting in
homicide and damage to property are separate crimes, and hence, the conviction of the first is
not a bar to the continued prosecution of the second.

Second view: Reckless imprudence under Article 365 is a single quasi-offense by itself
and not merely a means to commit other crimes; hence, conviction or acquittal of such quasi-
offense bars subsequent prosecution for the same quasi-offense, regardless of its various
consequences. The essence of the quasi-offense of criminal negligence under article 365 of the
Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. Thus the law penalizes the negligent or careless act, not
the result thereof. The gravity of the consequence is only taken into account to determine the
penalty. It does not qualify the substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several persons, the offense criminal
negligence remains one and the same, and cannot be split into different crimes and prosecutions
(Ivler vs. Modesto-San Pedro, G.R. No. 172716, November 17, 2010; Quizon vs. Hon. Justice of
Peace, July 28, 1955, GR N L-6641; People vs. Buan, L-25366, March 29, 1968; 1952, 1959,
1961 and 2013 Bar Exams).

Under this view, the motion to quash shall be granted because reckless imprudence
resulting in homicide, damage to property and slight physical injuries constitute a single crime,
and hence, the conviction of culpable felony involving slight physical injuries is a bar to the
continued prosecution of the same culpable felony involving homicide and damage to property.

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

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

32
issuance of a bad check; hence, malice and intent in the issuance thereof are inconsequential
(Rigor vs. People, G.R. No. 144887, November 17, 2004).

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

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

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

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

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

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

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

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

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

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

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

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

A demand letter that precedes the issuance of checks cannot constitute as sufficient
notice of dishonor within the contemplation of BP 22 (Chua vs. People, G.R. No. 196853 July
13, 2015, J. Del Castillo).

Acquittal of the accused for violation of BP Blg. 22 for failure to establish receipt of notice
of dishonor does not entail the extinguishment of his civil liability for the dishonored checks
(Chua vs. People, G.R. No. 196853 July 13, 2015, J. Del Castillo).

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

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

g. Suspension of payment - Suspension of payment order issued by SEC before the

check was presented for payment is a defense in BP Blg. 22. Considering that there was a lawful
Order from the SEC, the contract is deemed suspended. Thus, the accused has no obligation to
fund the check and the complainant has no right to present it for payment (Gidwani vs. People,
GR No. 195064, January 15, 2014). Suspension of payment order issued by SEC after three
months from receipt of notice of dishonor is not a defense in BP Blg. 22. The accused has the
obligation to make good of the check after he received the letter prior to the issuance of
suspension order (Rosario vs. Co, G.R. No. 133608, August 26, 2008).

68. RA No. 7610 - The Family Code prohibits the infliction of corporal punishment by
teacher. A schoolteacher in employing unnecessary violence on her minor student, who even
fainted, is liable for child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988,
October 08, 2014). Accused saw the victim and his companions hurting his minor daughters.
Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the
accused committed the act at the spur of the moment, they are perpetrated without intent to
debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him.
Without such intent, the crime committed is not child abuse under RA 7610 but merely slight
physical injuries (Bongalon vs. People, G.R. No. 169533, March 20, 2013).

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

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

If the child is 12 years old and above, and the acts of the accused constitute sexual abuse
or child prostitution under RA No. 7610 and rape through sexual assault or acts of
lasciviousness, he shall be prosecuted under RA No. 7610 since this law prescribed a grave
penalty (Dimakuta vs. People, G.R. No. 206513, October 20, 2015). However, if the acts
constitute sexual abuse and rape through sexual intercourse, he shall be prosecuted under RPC

34
since this law prescribed a graver penalty. He cannot be prosecuted for compound crime of rape
and sexual abuse because the latter is punishable under special law. He cannot be prosecuted
for both rape and sexual abuse because of the rule on double jeopardy (People v. Matias, G.R.
No. 186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19,
2013).

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

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

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

69. Terrorism - Terrorism is committing a predicate crime which creates a condition of

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

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

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

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

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

70. Trafficking in person - Accompanying a child and offering her sexual services in
exchange for money constitutes child prostitution. The accused who offered the victim to the one
who raped her is not liable for rape as principal indispensable cooperation since bringing the
victim to the rapist is not indispensable to the commission of the crime of rape (People vs. Dulay,
GR No. 193854, September 24, 2012). If the accused is regularly offering the sexual service of the
child in exchange for money, the crime committed is not anymore child prostitution. Maintaining
or hiring the child as purpose of prostitution constitutes qualified trafficking in person because
the former took advantage of vulnerability of the latter as a child and as one who need money.
Minority is qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014;
People vs. Hirang, G.R. No. 223528, January 11, 2017). Recruiting without license a person, child
or adult, to work as a prostitute abroad constitutes the crime of trafficking in person and illegal
recruitment. Syndicate is qualifying circumstance in both crimes. Even if the accused is less
than three, but the allegation and evidence shows that there are at least three traffickers and

35
recruiters, syndicated can be appreciated as qualifying circumstance (People vs. Lalli, G.R. No.
195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012).

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

72. RA No. 9165 - Accused were caught by police authorities on board a speedboat
carrying shabu. Since it was not proven that the drugs came from China or foreign country they
were convicted of possession of dangerous drugs, which is necessarily included in the charge of
importation (People vs. Chan Liu, G.R. No. 189272, January 21, 2015).

Possession of different kinds of dangerous drugs in a single occasion constitutes a single

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

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

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

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

b. Attempted sale - Poseur-buyer showed shabu for sale to poseur buyer. The sale was
aborted when the police officers immediately placed accused under arrest. The crime committed
is attempted sale (People vs. Figueroa, G.R. No. 186141, April 11, 2012).

c. Coordination with PDEA - Section 86 of RA No. 9165, which declares PDEA shall be
the "lead agency" in the investigations and prosecutions of drug-related cases, is more of an
administrative provision. It is silent as to the consequences of failure on the part of the law
enforcers to seek the authority of the PDEA prior to conducting a buy-bust operation (People
vs. Berdadero, G.R. No. 179710 June 29, 2010, J. Del Castillo). Lack of coordination with the
PDEA will not invalidate a buy-bust operation. Such coordination is not an indispensable
requirement in buy-bust operations (People vs. Mendosa, G.R. No. 189327, February 29, 2012).

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

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

The original version of Section 21 of RA No. 9165 did not provide the effect of non-
compliance of the rule on inventory and photography of the confiscated item. Section 21 of RA
No. 9165 as amended by Republic Act No. 10640, now includes a proviso that sanctions

36
noncompliance under "justifiable grounds": Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and
invalid such seizures and custody over said items (People vs. Que, G.R. No. 212994, January
31, 2018). The justifiable ground for non-compliance must be proven as a fact, because the
Court cannot presume what these grounds are or that they even exist. Moreover, for the above-
saving clause to apply, the prosecution must explain the reasons behind the procedural lapses,
and that the integrity and evidentiary value of the seized evidence had nonetheless been
preserved (People vs. Paz, G.R. No. 229512, January 31, 2018).

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

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

Non-compliance with Section 21, Article II of RA 9165 is not fatal and will not render an
accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost
importance is that the integrity and the evidentiary value of the seized items was properly
preserved and safeguarded through an unbroken chain of custody (People vs. Aplat, G.R. No.
191727 March 31, 2014, J. Del Castillo).

Although non-compliance with the prescribed procedural requirements would not

automatically render the seizure and custody of the contraband invalid, that is true only when
there is a justifiable ground for such non-compliance, and the integrity and evidentiary value of
the seized items are properly preserved. Any departure from the prescribed procedure must then
still be reasonably justified, and must further be shown not to have affected the integrity and
evidentiary value of the confiscated contraband (People vs. Barte, G.R. No. 179749, March 30,
2017).

e. Chain of custody - The chain of custody refers to recorded authorized movements and
custody of confiscated dangerous drugs. It involves testimony on every link in the chain - from
the confiscation of the illegal drugs to its receipt in the forensic laboratory up to its presentation
in court. It is necessary that every person who touched the seized item describe how and from
whom he or she received it; where and what happened to it while in the witness’ possession; its
condition when received and at the time it was delivered to the next link in the chain. Generally,
there are four links in said chain of custody: 1) the seizure and marking, if practicable, of the
illegal drug confiscated from the accused by the apprehending officer; 2) the turnover of the
seized drug by the apprehending officer to the investigating officer; 3) the turnover by the
investigating officer of said item to the forensic chemist for examination; and, 4) the turnover
and submission thereof from forensic chemist to the court (People vs. Gajo, G.R. No. 217026,
January 22, 2018).

f. Plea bargaining - Section 23 of RA No. 9165, any person charged under any crime
involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of
the provision on plea-bargaining. However, this provision was declared as unconstitutional for
contrary to the rule making authority of the Supreme Court (Estipona, Jr. vs. Lobrigo, G.R. No.
226679, August 15, 2017).

g. Confidential identity of informer - The failure of the prosecution to present the

confidential informant was not willfully unjustified. Police informants work incognito; to parade
them in court would destroy their usefulness. Therefore, his identity may remain confidential.
There are strong practical reasons for such continued secrecy, including the continued safety of
the informer and the encouragement of others to report wrongdoings to the police authorities (De
Jesus, G.R. NO. 93852, January 24,1992). This rule is applicable whether the informer is an intelligence
agent (Boco, G.R. No. 129676, June 23, 1999), or civilian informer or squealer (Nicolas, G.R. No. 110116,
February 1, 1995).

If the informant acted as poseur buyer or assisted the poseur buyer in transacting with
the pusher, his identify is not confidential. Withholding the testimony of the informant, who acted
as poseur buyer, during the trial could not attain objective of concealing his identity from the
accused and for the personal security. The informant must be well known if not familiar to the
accused; otherwise he could not act as poseur buyer (Rojo, G.R. No. 82737, July 5, 1989). Furthermore,
prosecution could not argue that exposing the identity of the informant and bringing him court
as witness would pose grave danger to his life since his identity and involvement in the
entrapment of accused was already made known to the accused during the exchange of subject
drug and money (Caboverde, 160 SCRA 550). Failure to present the informant as a witness may give
rise to the presumption that such evidence willfully suppressed would be adverse if produced
(Rojo case).

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 It must be noted that whatever relevant information the poseur-buyer may have was
also equally known to the police officers who testified for the prosecution during trial. Hence,
the testimony of the poseur-buyer was not indispensable or necessary; it would have been
cumulative merely, or corroborative at best (People vs. Perondo, G.R. No. 193855 February 18,
2015, J. Del Castillo).

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

Under Section 3 of RA No. 3019, any incumbent public officer, against whom any
criminal prosecution under a valid information for crime of corruption under RA 3019, crimes
committed by public officer under the RPC or for any offense involving fraud upon government
or public funds or property is pending in court, shall be suspended from office. The allegation
of falsification of the three public documents by making it appear that the flood control project
was 100% complete when in fact it was not constitutes fraud upon public funds, which is a
ground to preventively suspend a public officer (Abdul vs. Sandiganbayan, G.R. No. 184496
December 2, 2013, J. Del Castillo).

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

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

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

a. Arias principle - To apply the Arias rule for purposes of exonerating an accused or
respondent, the following requisites must be present: (1) that the public officer in approving the
release of public fund must be relying to a reasonable extent on his subordinates (Jaca vs. People,
G.R. No. 166967, January 28, 2013); (2) that the documents involving the release of funds must
be so voluminous so as to preclude him from studying each one carefully (Santillano vs. People,
G.R. Nos. 175045-46, March 03, 2010); (3) that the public officer has no foreknowledge of existing
anomaly (Escara vs. People, G.R. No. 164921, July 8, 2005); and that there is not deviation from
ordinary procedure in the release of fund, which necessitate further investigation (Cruz vs. The
Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005; Rivera vs. People, G.R. No. 156577,
December 03, 2014).

City treasurer, city accountant and city administrator allowed the release of cash advance
in favor of a paymaster despite the fact that she has previous unliquidated cash advances. They
are liable because of conspiracy of silence or inaction. Public officers’ omissions to question
irregularities indicate a common understanding and concurrence of sentiments respecting the
commission of the offense of causing undue injury to the government through gross inexcusable
negligence. This is called conspiracy by silence (Jaca vs. People, G.R. No. 166967, January 28,
2013).

b. Inducement by means of money - Under Section 3 (a) of RA No. 3019, a public officer,
who persuades, induces or influences another public officer to perform an act constituting a

38
violation of rules and regulations or an offense in connection with the official duties of the latter,
shall be punished for corruption. However, the deliberation in the Senate regarding the bill on
anti-graft shows that the mode of committing the crime under Section 3 (a) is persuading,
inducing or influencing a public officer by another public officer to commit an offense or to violate
rules and regulations by means of consideration, reward, payment or remuneration (Baviera vs.
Zoleta, G.R. No. 169098, Oct. 12, 2006).

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

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

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

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

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

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

65. Plunder - The elements of plunder are:

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

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

combination or series of the following overt or criminal acts:

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

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

Can the Senator use the defense in malversation that he is not responsible for the misuse
of his PDAP since it is the duty of the appropriate implementing agency of the government to
check that the recipient of the fund is not bogus? No. Assuming that the duty to check that the
recipient of the Senator’s PDAP is not bogus belongs to the appropriate agency of the government,
the Senator is still liable since malversation can be committed through culpa.

39
 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickback
or any other form of pecuniary benefits from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer;
(Example: Collecting or receiving commission from the sales of Belle Shares in the amount of
P189,700,000.00 which was deposited in the Jose Velarde account and receiving bi-monthly
collections from “jueteng”, a form of illegal gamblingin the aggregate amount of P545,291,000.00
of which was deposited in the Erap Muslim Youth Foundation (People vs. Joseph Estrada,
Criminal Case No. 26558, September 12, 2007).

3. By the illegal or fraudulent conveyance or disposition of assets belonging to government

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

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

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

5. By establishing agricultural, industrial or commercial monopolies or other

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

6. By taking advantage of official position, authority, relationship, connection or influence

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

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

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

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

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

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

Hypothetical problem: A Senator conspired with nine (9) private individuals in acquiring
ille-gotten wealth through a series of misappropriation of his pork barrel amounting to P200
million. Each of them is entitled to 10% of P200 million (or P20 million). They are liable for
plunder. On the basis of conspiracy, total amount of ill-gotten wealth acquired by the
conspirators including the private individuals shall be considered for purpose of determining if
P50-million threshold had been reached. Since the total amount of ill-gotten wealth acquired by
the Senator, the principal plunderer, and his nine co-conspirators, participants, is P200 million,
they are liable for plunder (See: Juan Ponce Enrile vs. People, supra).

b. Multiple conspiracies – There are two structures of multiple conspiracies, namely:

wheel or circle conspiracy and chain conpiracy. Under the wheel or circle conspiracy, there is a
single person or group (the "hub") dealing individually with two or more other persons or groups
(the "spokes"). Under the chain conspiracy, usually involving the distribution of narcotics or
other contraband, in which there is successive communication and cooperation in much the
same way as with legitimate business operations between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927,
August 24, 2007). An illustration of wheel conspiracy wherein there is only one conspiracy

40
involved was the conspiracy alleged in the information for plunder filed against former President
Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were
all the other accused individuals. The rim that enclosed the spokes was the common goal in the
overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth (GMA vs.
People, G.R. No. 220598, July 19, 2016).

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

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

c. Identification of the principal plunder – In wheel conspiracy involving plunder, the

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

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

misappropriation of PCSO fund in the amount of P360 million, and Pedro, a public officer, was
identified as the principal plunder or the hub and the nine (9) other accused were identified as
the spokes, the entire amount of P360 million shall be considered to determine if the P50-million
threshold in plunder has been reached. Hence, Pedro, the hub, and nine (9) spokes are liable for
plunder since the total amount of ill-gotten wealth that they acquired is P360 million.

2. Unidentified hub - If there is wheel conspiracy concerning the series of acts of

misappropriation of P360 million, but none of the 10 accused was identified as the hub or
principal plunder, each of them is only liable for 10% of the P360 million. Since each of them is
only liable for P36 million, plunder is no committed since the P50-million threshold had not been
reached (Gloria Macapagal Arroyo vs. People, supra).

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

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

Under Section 6 of RA No. 10175, the penalty for crimes punishable under special laws
committed through and with the use of information and communication technologies shall be
one degree higher than that provided the law. However, this provision requires the application of
the rules on graduation of penalties under the Revised Penal Code. Hence, Section 6 finds
application only if special law involved has adopted the technical nomenclature of the penalties
of Revised Penal Code.

67. Content-related offenses - Content-related offenses includes cyber libel, cybersex

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

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

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

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 Under Section 4 (c) (4) of RA No. 10175, cybercrime punishable includes content-related
offenses such as such cyber libel, which is an unlawful or prohibited act of libel as defined in
Article 355 of RPC committed through a computer system or any other similar means which may
be devised in the future.

The phrase “acts constitute the offense of cybercrime punishable under this Act” in Section
4 (c) (4) of RA No. 10175 means that libel defined under Revised Penal Code committed through
computer system (cyber libel) is punishable under RA No. 10175 and not under RPC.
Unfortunately, Section 8 of RA No. 10175, the penal provision of the law, fails to provide a penalty
for cyber libel under Section 4 (c) (4). Thus, the accused for committing cyber libel should be
prosecuted for libel under Revised Penal Code with the qualifying circumstance of use of
information and communications technologies under Section 6 of RA No. 10175. With this
qualifying circumstance, the penalty for libel under Article 355 of the Code shall be increased
one degree higher.

The place where libelous article was accessed by the offended party in the internet is not
equivalent to the place where the libelous article is “printed and first published”. To rule
otherwise is to allow the evil sought to be prevented by the amendment to Article 360, and that
was the indiscriminate laying of the venue in libel cases in distant, isolated or far-flung areas, to
harass an accused. At any rate, Article 360 still allow offended party to file the civil or criminal
complaint for internet libel in their respective places of residence (Bonifacio vs. RTC, Makati,
Branch 149, G.R. No. 184800, May 5, 2010).

b. Cybersex – Cybersex under RA No. 10175 is committed by any person, who shall
wilfully engage, maintain, control, or operate, directly or indirectly, any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

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

If the commission of cybersex involves lascivious exhibition of sexual organs or sexual

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

If the commission of cybersex involves the maintenance of trafficked victim, the offender
may be prosecuted for trafficking in person under RA No. 9208.

c. Cyber child pornography - In RA No. 9208 child pornography is committed by

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

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