2023 PRE-DAY 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 books for publication without proper attribution is
prohibited by law.
1. If the psychological violence consisting of marital infidelity punishable under
RA No. 9262 is committed in Singapore but the psychological effect occurred in the
Philippines since the wife of the respondent, who suffered mental anguish, is residing
in the Philippines, our court can assume jurisdiction (see: AAA vs. BBB, G.R. no.
212448, January 11, 2018).
2. Under the Convention on the Law of the Sea, the Philippines can exercise
jurisdiction over crime committed on board A foreign merchant ship passing through
the 12-mile territorial sea 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
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sea; or (4) if it is for the suppression of traffic in narcotic drugs or psychotropic
substances.
3. Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who
live or sojourn in the Philippine territory. This is the generality principle. Hence, a
person regardless of his citizenship, religion, political position, or any other status can
be criminally prosecuted and convicted as long as he is living or sojourning in the
territory of the Philippines.
4. Case law or jurisprudence recognizes presidential immunity. Because of this
immunity, penal laws are not obligatory to the President. The President of the
Philippines is entitled to immunity from suit subject to the following conditions: (1) the
immunity has been asserted; (2) during the period of his incumbency and tenure; and
(3) the act constituting the crime is committed in the performance of his duties.
Presidential immunity will ensure the exercise of presidential duties and functions free
from any hindrance or distraction, considering that the Chief Executive is a job that
demands undivided attention. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2,
2001) There is no vice-presidential immunity since he is not the Chief Executive, whose
job demands undivided attention.
5. If the offense punishable under special law is inherently evil, there are two
views on the standard in classifying a crime as malum in se or malum prohibitum.
First view - The first view is that if the offense is punishable under a special
law, it will be treated as malum prohibitum. Thus, fencing (Estrella vs. People, G.R. No.
212942, June 17, 2020), hazing (Estrella vs. People, G.R. No. 212942, June 17, 2020),
and trafficking in person (People vs. Dela Cruz, G.R. No. 238754, June 16, 2021) are
mala prohibita since they are punishable under special criminal laws.
Second view - The second view is that although the offense is punishable under
special law, if the same is inherently evil it will be treated as malum in se. Child
pornography (Cadajas vs. People, G.R. No. 247348, June 15, 2022), plunder (Napoles
vs. Sandiganbayan, G.R. No. 224162, November 7, 2017), and violence against women
(Acharon vs. People, G.R. No. 224946, November 9, 2021) are mala in se although they
are punishable under special laws since they are inherently wrong.
Sexual abuse under Section 5 (b) of RA No. 7610 is considered by the Supreme
Court as malum prohibitum simply because it is punishable under a special law. In sum,
the first view was applied in this case. (Carbonell vs. People, G.R. No. 246702, April 28,
2021) Child abuse under Section 10 of RA No. 7610 is considered by the Supreme Court
as malum in se because is it inherently wrong (Demata vs. People, G.R. No. 228583,
September 15, 2021) In sum, the second view was applied in this case.
6. If the crimes committed against the target victim and third person, who was
hit by reason of aberratio ictus, were produced by a single act, the accused is liable for
a complex crime. Thus, a single act of throwing a grenade or firing a gun killing one and
injuring another constitutes a complex crime of murder with attempted murder. (People
v. Julio Guillen, G.R. No. L-1477, January 18, 1950; People vs. Bendecio, G.R. No.
235016, September 08, 2020) However, the accused is liable for separate crimes despite
the application of the aberratio ictus rule, and not a complex crime in the following
cases: (a) If the bullet that killed the target victim is different from the bullet that killed
the third person, who was hit by reason of aberratio ictus (Cruz vs. People, G.R. No.
216642, September 8, 2020, ); (b) If the crime committed against the third person, who
was hit by reason of aberratio ictus, is merely a light felony such as slight physical
injuries (People v. Violin, G.R. Nos. 114003-06, January 14, 1997); (c) If the crime
committed against the third person, who was hit by reason of aberratio ictus, is child
abuse, which is an offense punishable under special law (Patulot vs. People, G.R. No.
235071, January 7, 2019) Components of complex crime must be felonies.
The accused consciously poured hot cooking oil from a casserole on CCC,
consequently injuring AAA (3 years old) and BBB (2 months old) and burning their skins
and faces. The accused is liable for child abuse involving the infliction of physical injury
although there is no intent to degrade, debase, or demean the intrinsic worth and dignity
of AAA and BBB as human beings. In fact, the intention of the accused is merely to
inflict injury on CCC but because of aberratio ictus or mistake of blow, AAA and BBB
were also injured. In sum, because of Article 4 of RPC, the accused is liable for the
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wrongful act done (child abuse against AAA and BBB) although it differs from the
wrongful act intended (physical injuries on CCC). This is not a complex crime. The
accused is liable for two counts of child abuse. (See: Patulot vs. People, G.R. No. 235071,
January 7, 2019) and physical injuries.
7. Stabbing a person without knowing that he is already dead is an impossible
crime. (Intod v. Court of Appeals, G.R. No. 103119, October 21, 1992) However, if the
accused, who stabbed the dead body of the victim, conspired with the one who
previously hacked and killed the victim, the former is liable for murder and not an
impossible crime because of the collective responsibility rule. The liability of the accused
for murder is not based on his act of stabbing the dead body of the victim. His liability
is based on the act of his co-conspirator in hacking and killing the victim, which by the
fiction of the law shall be treated as the act of both of them. (People v. Callao, G.R. No.
228945, March 14, 2018, Caguioa)
8. Section 5 of PD 1612 states that mere possession of any object which has been
the subject of robbery or thievery shall be prima facie evidence of fencing. However, this
presumption was overcome by the accused upon presentation of the notarized affidavits
of the President and Chief Mechanic of Bicycle Works that indeed, he bought the bicycle
subject of the case from their store. Without proof that the bicycle stolen from the
complainant is the same bicycle in the possession of the accused, the presumption
under Section 5 of PD 1612 would not operate. (Lopez vs. People, G.R. No. 249196, April
28, 2021)
Knowledge of the accused that the property is stolen is an element of fencing.
Knowledge is either actual, implied, or presumed. Under the law, fencing is committed
if the accused should have known that the property was stolen (implied knowledge)
taking 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). In sum, possession of stolen property
gives rise to the presumption that the possessor knows (presumed knowledge) that the
property is stolen.
The accused should have been forewarned that the soft drinks came from an
illegal source, as his transaction with the thief did not have any accompanying delivery
and official receipts, and that the latter did not demand that such items be replaced
with empty bottles, contrary to common practice among dealers of soft drinks. He should
have known that the goods were stolen. He was convicted of fencing. (Cahulugan vs.
People, G.R. No. 225695, March 21, 2018)
The elements of fencing under Section 6 of PD No. 1612 are: first, that the person
is in the business of buying and selling anything of value; second, that such thing of
value was obtained from an unlicensed dealer or supplier thereof; third, that such thing
of value is to be offered for sale to the public, and fourth, that he failed to obtain a permit
from the chief of the police of the concerned police station. (Note: That the property is
stolen is not an element of fencing of the second form) The accused, who was not
engaged in the business of buying and selling, and merely bought the property for
personal use and not for the purpose of selling it to the public, is not liable for fencing
for failure to obtain a clearance. (Lim vs. People, G.R. No. 211977, October 12, 2016)
Note: If the question in the bar exam involves buy and sell business, please discuss both
fencings of the first form and second form.
9. If the principal objective of the offender is to rape the victim, and the former
dragged the latter to a nearby place where there are no witnesses, the dragging which
may constitute forcible abduction will be considered as part of the commission of rape.
Hence, the doctrine of absorption applies. Since forcible abduction is an indispensable
means to commit rape; hence, the latter absorbs the former. (People v. Almanzor, G.R.
No. 124916, July 11, 2002)
If the offender abducted the victim with a lewd design (as evidenced by the fact
that the offender touched the sensitive part of the body of the victim immediately after
abduction), and brought her to a house or motel or a place at a considerable distance
from the place where she was abducted (e.g., from Quezon City to Pasay City), forcible
abduction will be considered a necessary means to commit first rape; hence, the acts
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constitute a complex crime of rape through forcible abduction. The subsequent rapes
shall be considered as separate crimes (People v. Jose, G.R. No. L-28232, February 6,
1971)
If the offender abducted the victim, transported her to a house, and raped her
four times. There is no showing that at the time of the abduction, the offender is
motivated by lewd design (e.g., no showing that the offender touched the sensitive part
of the body of the victim immediately after the abduction or statement showing lewd
intent). Hence, the crime committed is kidnapping and not forcible abduction. Since the
victim was raped in the course of detention, this is a special complex crime of kidnapping
with rape. Regardless of the number of rapes, this is a single indivisible crime of
kidnapping with rapes. (People v. Mirandilla, Jr., G.R. No. 186417, July 27, 2011)
10. A, B, C, and D abducted X and her maids, Y and Z, in Quezon City and
brought them to a safe house in Tagaytay. A raped X, B raped Y, and C raped Z. D
demanded ransom from the parents of X. For failure to give the ransom, D killed X, Y,
and Z. Since kidnapping is a crime against liberty, the court shall consider the number
of criminal impulses to deprive liberty to determine the number of crimes committed. It
is a basic rule that there are as many criminal impulses to deprive liberty as there are
persons whose liberties have been deprived of. Hence, the kidnappers are liable for as
many kidnappings and serious illegal detention as there are persons detained. (People
v. Caloring, G.R. No. 250980, March 15, 2022) Since there are three victims in this case,
A, B, C and D are liable for three counts of kidnapping for ransom. Since X, Y, and Z
were killed in the course of their detention, three counts of special complex crime of
kidnapping with homicide are committed. The rapes committed by A, B, and C against
X, Y and Z shall be integrated into the three special complex crime of kidnapping with
homicide, respectively. (People vs. Larranaga, 138874-75, February 3, 2004)
A, B, C, and D entered the house of X and took her money and pieces of jewelry.
They also took the money of Y and Z, the maids of X. Then, A raped X, B raped Y and C
raped Z. Later on, D killed X, Y, and Z. Since robbery is a crime against property, the
court shall consider the number of criminal impulses to take properties to determine
the number of crimes committed. Since there is a single criminal impulse to rob the
house of X, they committed a single crime of robbery although there are three victims.
Taking money from Y and Z is only a consequence of their original and single impulse
to commit robbery in the house of X, and therefore cannot be taken as separate and
distinct offenses. The crime of robbery is a continuing crime (delito continuado), thus,
although there is a series of acts, there is but one crime committed. (People vs. Coritana,
G.R. No. 209584, March 03, 2021) Since by reason or on occasion of robbery, X, Y and
Z were killed, they are liable for a special complex crime of robbery with homicide. In
this special complex crime, it is immaterial that several persons are killed. It is also
immaterial that aside from the homicides, rapes are committed by reason or on the
occasion of the robbery. Hence, rapes committed against X, Y, and Z in the course of
robbery shall be integrated into one indivisible felony of robbery with homicide. (People
vs. Daguman, G.R. No. 219116, August 26, 2020)
11. In robbery with homicide, the victim of the robbery need not be the victim of
the homicide, (People vs. Daguman, G.R. No. 219116, August 26, 2020) and it is
immaterial that the victim of homicide is a bystander (People vs. Barut, G.R. No. L42666 March 13, 1979), a responding policeman (People vs. Pelagio, G.R. No. L-16177,
May 24, 1967) or one of the robbers. (People vs. Casabuena, G.R. No. 246580, June 23,
2020)
12. Case law establishes that whenever homicide or rape has been committed by
reason of or on the occasion of the robbery, all those who took part as principals in the
robbery will also be held guilty as principals of robbery with homicide or rape although
they did not take part in the homicide or rape, unless it appears that they sought to
prevent the killing or rape. (People vs. Casabuena, G.R. No. 246580, June 23, 2020;
People vs. Coritana, G.R. No. 209584, March 03, 2021) The accused must be aware of
the sexual act in order for him to have the opportunity to attempt to prevent the same,
without which he cannot be faulted for his inaction. (People vs. Agaton, G.R. No. 251631,
August 27, 2020) If there is no evidence that the accused is aware of the commission of
rape, he could not have prevented the rape. Hence, the accused is only liable for robbery
and not robbery with rape. (People v. Canturia, G.R. No. 108490, June 22, 1995)
Canturia principle where lack of awareness is a defense is applicable to
kidnapping with rape (People v. Anticamaray, G.R. No. 178771, June 8, 2011) or
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homicide (People v. Corbes, G.R. No. 113470, March 26, 1997) and robbery with arson.
However, Canturia principle is not applicable to robbery with homicide. Even though the
accused was not aware of the killing by his co-robber and had no opportunity to attempt
to prevent the same, he is still liable for a special complex crime of robbery with homicide
since the killing of the victim is an inherent consequence of the violence which is an
element of robbery.
13. At the time Congress was crafting the provision on robbery with rape, its
members were thinking of rape under Article 335 of RPC, which is committed through
sexual intercourse. There is no crime of sexual assault in 1993 when its members were
making the special complex crime of robbery with rape a heinous crime. Hence, the
crime of sexual assault is not within the contemplation of the word “rape” as a
component special complex crime of robbery with rape under Article 294. If by reason
or on occasion of robbery, sexual assault is committed, the offender is liable for separate
crimes of robbery and sexual assault. (See: People vs. Barrera, G.R. No. 230549,
December 01, 2020)
14. If the victim dies or is killed as a consequence of detention, the offender is
liable for special complex crime of kidnapping with homicide. If the victim dies or is killed
in the course of arbitrary detention, the offender is not liable for special complex crime.
Neither is he liable for complex crime. These two crimes were not produced by a single
act. Arbitrary detention (which is a function-related crime) was not used as a necessary
means to commit murder, (which is not a function-related crime). Hence, the offenders
are liable for separate crimes of murder and arbitrary detention. (People vs. Dongail, G.R.
No. 217972, February 17, 2020)
15. If the robbers held hostages the victims to prevent the policemen form
arresting them, the crime committed is robbery, which absorbs illegal detention. Since
the principal intention of the accused 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 incidental kidnapping and
serious illegal detention. (People v. Astor, G.R. Nos. L-71765-66, April 29, 1987) On the
other hand, if the rapist held hostage the victim to prevent the policemen from arresting
him, the crimes committed are rape and serious illegal detention. Since the detention
continued after the rape had been completed, it cannot be deemed a necessary means
for the crime of rape. Hence, the crimes shall be considered as separate. (People vs.
Concepcion, G.R. No. 214886, April 04, 2018) Note: Concepcion case is not compatible
with the Astor case. For bar exam purpose, if the crime is robbery, Astor case is
applicable; if it is rape, Astor case applies.
16. The rules on application of divisible penalties (Article 64 (5) of RPC) on special
mitigating circumstance that requires the graduation of penalty is only applicable if the
involved penalty contains three periods. Reclusion perpetua to death prescribed for
parricide is not a divisible penalty or penalty containing three periods. It is an indivisible
penalty. Thus, the court should consider the rules on application of indivisible penalties
(Article 63 par. 2 (3) of RPC), under which the lesser penalty shall be applied if there are
some mitigating circumstances and no aggravating circumstance. Reclusion perpetua
is lesser than death. Hence, the accused shall be sentenced to suffer reclusion perpetua.
(People vs. Natindim, G.R. No. 201867, November 4, 2020, Hernando)
17. In 2019 the DOJ issued new implementing rules of RA No. 10592, under
which detention prisoner charged with heinous crime or convicted prisoner, who is
convicted of heinous crimes, are not entitled to GCTA, special time allowance for loyalty,
and time allowance for study, teaching, and mentoring under Articles 97 and 98 of the
Codes. The Supreme Court recognizes the validity of the DOJ implementing rules (2019
Revised IRR). It was held that the GCTA Law and 2019 Revised IRR have made
abundantly clear that persons charged with and/or convicted of heinous crimes are not
entitled to the benefits under RA No. 10952. (Miguel vs. Director of Bureau Prisons,
UDK-15368, September 15, 2021, Justice Hernando)
18. Within 15 days from promulgation of judgement of conviction, the accused
had the following remedies:
(a) If the penalty imposed exceeds six (6) years of
imprisonments, the accused can file an appeal or motion for reconsideration. (b) If the
penalty imposed exceeds six (6) months of imprisonment but not exceeding 6 years, the
accused can file an appeal or apply for probation. (c) If the penalty imposed arresto
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menor or arrestor mayor (not exceeding 6 months), the accused can file an appeal, or
apply for probation or community service.
These remedies of appeal, probation and community service are mutually
exclusive. (People vs. Galuga, G.R. No. 221428, February 13, 2019, Hernando) In sum,
filing an appeal will exclude applying for probation or community service as a remedy;
applying for probation will exclude filing an appeal or applying for community service
as a remedy; and applying for community service will exclude filing an appeal or
application for probation as a remedy. However, in the event that the court denies the
application for community service and the period to appeal has not yet lapsed, the
accused may still choose to appeal or apply for probation. (A.M. No. 20-06-14-SC)
Moreover, the accused can withdraw the application for probation and file an appeal
provided that both the withdrawal and appeal are made within the period of perfecting
an appeal. (Yusi v. Morales, G.R. No. 61958, April 28, 1983;
The accused was convicted of malversation and sentenced to suffer a penalty of
11 years of prision mayor, which is non-probationable. The judgment becomes final prior
to the effectivity of RA No. 10951, which generally reduced the penalty for malversation.
Despite the immutability of a final judgment, the Supreme Court reduced the penalty to
3 years of prision correccional in accordance with RA No. 10951, which penalty is now
probationable. Since the judgment of conviction imposing a non-probationable penalty
is modified through the imposition of a probationable penalty, under PD No. 968 (the
Probation Law) the accused is now allowed to apply for probation based on the modified
decision before such decision becomes final. (Hernan vs. Honorable Sandiganbayan,
G.R. No. 217874, December 5, 2017; Aguinaldo vs. People, G.R. No. 226615, January
13, 2021)
The accused can apply that the penalty be served by rendering community
service. If the accused is sentenced with a penalty higher than arresto menor or arresto
mayor, and on appeal the penalty was lowered to arresto menor or arresto mayor, which
became final and executory, the accused may, upon written application with the court
of origin, seek community service in lieu of imprisonment. (A.M. No. 20-06-14-SC,
October 6, 2020)
Under PD No. 968 and Article 88-A of RPC, probation or community service shall
availed of only once. However, these two remedies can be successively availed. Under
A.M. No. 20-06-14-SC, October 6, 2020, an accused who has applied and was granted
probation in a previous case is not disqualified to apply for community service in a
subsequent case. Under PD No. 968, the benefits of probation law shall not be extended
to those who have been previously convicted by final judgment of an offense punished
by imprisonment of more than six months and one day. Availing community service in
a previous case means that the penalty imposed in that case is not higher than arresto
menor or arrestor mayor. Since the penalty in his previous case does not exceed 6
months, he can apply for probation in his present case. In sum, an accused who has
applied and was granted community service in a previous case is not disqualified to
apply for probation in a subsequent case.
Accused is charged of sale of dangerous drugs. Pursuant to a plea-bargaining
agreement, he pleaded guilty to the lesser offense of possession of drug paraphernalia.
Possession of drug paraphernalia is probationable since the penalty prescribed for it
does not exceed 6 years of imprisonment. Under Section 24 of RA No. 9165, any person
convicted for drug trafficking or pushing cannot avail of the privilege granted by the
Probation Law. However, possession of drug paraphernalia is not considered as drug
trafficking or pushing. Hence, the accused is eligible to apply for probation. (Pascua vs.
People, G.R. No. 250578, September 07, 2020)
19. Re-election to public office or condonation of a re-elected public officer is not
a defense in a criminal case. (Oliveros v. Judge Villaluz, G.R. No. L-34636, May 30, 1974)
Under the old rule, the reelection to public office or condonation of a re-elected public
officer was a defense in an administrative case. (Aguinaldo v. Santos, G.R. No. 94115,
August 21, 1992) But doctrine of administrative condonation has been abandoned
because it is inconsistent with the concept of public office is a public trust (Morales v.
CA and Binay, G.R. Nos. 217126-27, November 10, 2015) However, the Morales
principle shall be given a prospective effect (Ombudsman v. Mayor Vergara, G.R. No.
216871, December 6, 2017) The abandonment of the doctrine of condonation took effect
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on April 12, 2016, when the Supreme Court denied with finality the OMB's Motion for
Reconsideration in Morales case. (Crebello v. Office of the Ombudsman, G.R. No. 232325,
April 10, 2019) Thus, the re-elected public officer can still use the condonation as a
defense in administrative case subject to two conditions: (1) the administrative
complaint is filed before April 12, 2016; and (2) the respondent was re-elected before
April 12, 2016. (Office of the Ombudsman vs. Malapitan, G.R. No. 229811, April 28,
2021)
22. Novation is not a mode of extinguishing criminal liability under Article 89 of
the Revised Penal Code. (People v. Nery, G.R. No. L-19567, February 5, 1964) Criminal
liability for estafa is not affected by a compromise or novation of contract. (Metropolitan
Bank and Trust Company v. Reynando, G.R. No. 164538, August 9, 2010; 1984 Bar
Exam) Hence, as a general rule, novation is not a defense in a criminal case.
However, a novation can extinguish the old contract, which may be the basis of
criminal liability. In such a case, novation is a defense. In estafa through
misappropriation, “receiving the property in trust” is an element thereof. In sum, a
contract of trust is an ingredient of this crime. Novation may convert the contract of
trust into a loan contract, or create doubt on the original transaction’s true nature.
(People v. Nery, supra) 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 a sale.
(Degaños v. People, G.R. No. 162826, October 14, 2013; 1988 Bar Exam) Moreover,
“receiving the property under an obligation involving the duty to deliver, or to return” is an
element of estafa through misappropriation. Novation may convert a contract where the
accused has the duty to return property into a new contract where the accused has no
such duty. Hence, estafa through misappropriation is not committed. (Sorongon vs.
People, G.R. No. 230669, June 16, 2021)
Novation cannot be used as a defense in case of theft or estafa through false
pretense since contract is not an element of this crime. There is nothing to novate.
(People v. Tanjutco, G.R. No. L-23924, April 29, 1968) (Milla v. People, G.R. No. 188726,
January 25, 2012)
Novation may be express or implied. There is express novation when novation
has been explicitly stated and declared in unequivocal terms. There is implied novation
when the old and the new obligations are incompatible on every point. Partial payment
and promise to pay the balance of obligation under a contract of agency will not convert
it into a sale. There is no novation since the obligation of the accused in making a partial
payment is not incompatible with the obligation to give the proceeds of the sale of the
property under the contract of agency. (Degaños v. People, supra;)
In commodatum, ownership of the thing loaned does not pass to the borrower. In
the settlement between the private complainant and the accused before the barangay
proceedings, the former waived her ownership over the cement mixer in favor of the
latter in exchange for refraining from filing any case against her. The obligation of the
accused (returning the property) under the old contract of commodatum is not
compatible with his obligation (refraining from failing a case) under the amicable
settlement. Novation had effectively occurred. Being the owner of the cement mixer, the
accused has no obligation to return the same to the private complainant. (Sorongon vs.
People)
21. Generally, the prescriptive period shall commence to run on the day when
the crime is committed. An exception to this rule is the "blameless ignorance" doctrine,
under which prescription runs only upon discovery of the crime by offended party or
State through a person in authority or his agent. In other words, the courts would
decline to apply the statute of limitations where the state through person in authority
or its agent, and private complainant does not know, or has no reasonable means of
knowing the existence of a crime. In sum, the State and complainant should not be
blame for failure to institute the case immediately after the commission of the crime if
he is ignorant of such commission.
22. 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. In sum, the
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complainant constructively discovered the crime on the date of registration. (Lim vs.
People, G.R. No. 226590, April 23, 2018) 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 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).
23. Under Act 3326, prescription for an offense punishable under special laws
begins to run from the date of the commission of the offense, if the date of the
commission of the crime is known, or from the date of discovery thereof if it unknown.
This is the blameless ignorance doctrine.
If the necessary information, data, or records (e.g., SALN or municipal
procurement contract) based on which the crime could be discovered is readily available
to the public, the State is to be presumed to know that the crime has been committed.
Hence, the prescription begins to run from the date of the commission of the offense
(e.g., failure to file SALN or violation of Section 3 (e) of RA No. 3019; People vs. ParbaRural, G.R. No. 231884, June 27, 2018; Perez vs. Sandiganbayan, G.R. No. 245862.
November 3, 2020)
If the necessary information, data, or records based on which the crime could be
discovered is not readily available to the public, there is no way for the State to know
that the crime has been committed. Hence, the prescription begins to run from the date
of the discovery of the offense. (People vs. Parba-Rural, supra)
Considering that during the Marcos regime, no person would have dared to assail
the legality of the transactions involving cronies (such as behest loans or transactions
involving the construction of nuclear power plant), it would be unreasonable to expect
that the discovery of the unlawful transactions was possible prior to 1986. (Disini v.
Sandiganbayan, G.R. Nos. 169823-24 and 174764-65, September 11, 2013) Hence, the
prescriptive period for violation of R.A. No. 3019 commenced from the date of its
discovery in 1992 after the Committee made an exhaustive investigation. (Presidential
Ad hoc Fact-finding Committee v. Hon. Desierto, G.R. No. 135715, April 13, 2011)
24. Article 91 of RPC provides “the period of prescription shall be interrupted by
the filing of the complaint or information.” The filing of complaint for preliminary
investigation in the prosecutor’s office interrupts the running of prescription of simple
slander because Article 91 does not distinguish whether the complaint is filed in the
Office of the Prosecutor for preliminary investigation or in court for action on the merits.
(Francisco vs. CA, G.R. No. L-45674, May 30, 1983)
Under Act No. 3326, the running of the prescription of offense punishable under
special law shall be interrupted when “judicial proceedings for investigation and
punishment” are instituted against the guilty person. Act No. 3326 used the phrase
“judicial proceeding for investigation” because in the past it was the justice of peace, who
was conducting preliminary investigation. At present, only prosecutors (or ombudsman
officers) are conducting preliminary investigation. Hence, the term “proceedings” should
now be understood either as executive or judicial in character: executive when it involves
the investigation phase and judicial when it refers to the trial and judgment stage.
(Panaguiton v. Department of Justice, G.R. No. 167571, November 25, 2008) Hence, the
filing of complaint for violation of BP 22 (People v. Pangilinan, G.R. No. 152662, June
13, 2012) or violation of RA No. 3019 (Perez vs. Sandiganbayan, G.R. No. 245862.
November 3, 2020) for preliminary investigation with prosecutor’s office or Ombudsman
interrupts the running of prescriptive period.
However, the Supreme Court in Jadewell Parking Systems Corp. vs. Lidua, Sr.,
G.R. No. 169588, October 7, 2013 made an interpretation of Act No. 3326 involving
prescription of violation of ordinance, which is incompatible with the Panaguiton case
and other cases. In Jadewell case, the words “judicial proceedings” in Act No. 3326 does
not include preliminary investigation, which is an administrative proceeding. Hence, the
filing of complaint for violation of ordinance for preliminary investigation with the
prosecutor’s office will not interrupt the running of the prescriptive period. Moreover,
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the provision in the Rules on Criminal Procedure regarding the interruption of
prescription by institution of criminal action is not applicable to violation of ordinance
because case involving this crime is covered by the Rules on Summary Procedure.
For purpose of the bar exam, the Jadewell principle should be applied if the case
involved violation of ordinance. Jadewell should not be applied to offenses under special
laws (e.g., violation of BP Blg. 22) even they are covered by the rules on summary
procedure. (People vs. Lee, G.R. No. 234618, September 16, 2019) Jadewell case cannot
be applied to prescription of felonies although they are covered by the Rules on
Summary Procedure. Jadewell case is interpreting Act No. 3326, while Francisco case
is interpreting Article 91 of the Revised Penal Code.
25. Simple assault (e.g., 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). But serious assault upon agent of a person in authority while engaged in the
performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406, January 6,
1904; U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).
Simple assault (e.g., 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). If
the person in authority or his agent is not engaged in the actual performance of duties
at the time of the assault, the motive for the assault is material. To constitute direct
assault, the offender must have assaulted the victim by reason of his past performance
of duty as a person in authority or as an agent. (People vs. Renegado, G.R. No. L-27031,
May 31, 1974)
Assaulting a mayor while performing his duty in city hall by reason of nonpayment of loan is direct assault. Assaulting a mayor on vacation by reason of approving
an ordinance is direct assault. Assaulting a mayor on vacation by reason of nonpayment of loan is physical injuries with aggravating circumstance of disregard of rank.
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 a person in authority at the
time of the assault. Note: The mandatory retirement age of a judge is 70 years.
The accused, who assaulted a teacher (a person in authority), is liable for direct
assault upon a person in authority. A third person, who comes to the aid of said teacher
shall be considered an agent of the teacher. Hence, assaulting the teacher constitutes
direct assault upon an agent of a person in authority.
The accused, who seriously assaulted a police officer (an agent of the chief of
police), is liable for direct assault upon an agent of a person in authority. A third person,
who comes to the aid of said police officer, shall not be considered an agent of chief of
police. Hence, assaulting such third person constitutes indirect assault.
The accused, who punched a police officer to resist arrest, is liable for simple
resistance. Assaulting a third person, who comes to the aid of said police officer, does
not constitute indirect assault but physical injuries. Indirect assault presupposes the
commission of direct assault, and not a mere simple resistance.
Single act of stabbing the mayor while in the performance of his duty or by reason
of past performance of duty constitute complex crime of direct assault with homicide,
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attempted homicide or less serious physical injuries. (People vs. Bautista, G.R. No.
247961, June 16, 2021; Tacas v. People, G.R. No. L-37406, August 31, 1976; People v.
Beltran, G.R. Nos. L-37168-69, September 13, 1985) However, there is no complex crime
of direct assault with slight physical injuries. Under Article 48 of RPC, single act
constituting a two or more grave or less grave felony is a complex crime. Hence, slight
physical injuries, which is a light felony, cannot be a component of a complex crime.
Direct assault will absorb slight physical injuries since the latter is inherent in the
former. (People v. Acierto, G.R. No. 36595, November 28, 1932)
26. Serious physical injuries contemplate physical deformity or the loss of a body
part resulting in the alteration of one's physical appearance. The loss of a tooth, may,
in most cases, be later repaired or replaced with an artificial tooth by a competent
dentist. Thus, for the loss of a tooth to be considered within the scope of serious physical
injuries, the circumstances surrounding its loss and whether it caused a physical
deformity or permanent alteration of one's physical appearance must be examined on a
case-to-case basis. (Ruego vs. People, G.R. No. 226745, May 03, 2021) There may be
cases where the loss of teeth would cause a physical deformity that can no longer be
remedied by science. Hence, the crime committed is serious physical injuries. (Ruego
vs. People, supra) During the trial, the complainant was asked to show to the trial court
his tooth, to which the trial court noted that it was already an artificial tooth. The
complainant’s face had no visible disfigurement that would warrant accused’s
conviction of serious physical injuries. He was convicted of slight physical injuries.
(Ruego vs. People, supra)
27. There are two kinds of rape: (1) rape through sexual intercourse; and (2) rape
through sexual assault. However, the Supreme Court said that rape through sexual
intercourse should be called as “rape” while rape through sexual assault should be
called “sexual assault.” (People vs. XXX, G.R. No. 238405, December 07, 2020,
Hernando)
There are three kinds of sexual assault, to wit: (1) instrument or object sexual
assault, which is committed by inserting an instrument or object (e.g., finger or tongue)
into the genital or anal orifice of another person; (2) sexual assault through oral
intercourse, which is committed by inserting his penis into another person’s mouth;
and (3) sexual assault through sodomy, which is committed by inserting his penis into
another person’s anal orifice.
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 and sexual assault. Inserting the penis into the
mouth of the victim and into her genital orifice constitutes separate crimes of sexual
assault and rape (People vs. Dereco, G.R. No. 243625, December 2, 2020)
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).
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, but the crime proven is sexual assault, the accused cannot
be convicted of the latter. The variance rule is not applicable since sexual assault is not
necessarily included in the charge of rape. The elements of these two crimes are
materially and substantially different. (People vs. Dereco, G.R. No. 243625, December
02, 2020) In such case, the accused will be convicted of acts of lasciviousness (People
vs. Caoili, G.R. No. 196342, August 08, 2017); or acts of lasciviousness under RPC in
relation to RA No. 7610 (People vs. Dagsa, G.R. No. 219889, January 29, 2018); or
lascivious conduct under RA No. 7610 (People vs. ZZZ, G.R. No. 224584, September 04,
2019). Acts of lasciviousness or lascivious conduct is necessarily included in the charge
of rape.
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If the crime charged is acts of lasciviousness, but the crime proven is sexual
assault, he will be convicted of the lesser crime of acts of lasciviousness. Sexual assault
is a crime undoubtedly greater than acts of lasciviousness. While it is true that the crime
of acts of lasciviousness is necessarily included in the crime of sexual assault, the crime
of sexual assault however is not subsumed in the crime of acts of lasciviousness. (People
vs. Jagdon, Jr., G.R. No. 242882, September 09, 2020)
Rape of a female victim by a male person through penile penetration reaches the
consummated stage as soon as the penis penetrates “the cleft” of the labia majora in
even the slightest degree. Simply put, mere introduction, however slight, into the cleft
of the labia majora by a penis that is capable of penetration, regardless of whether such
penile penetration is thereafter fully achieved, consummates the crime of rape. (People
vs. Agao, G.R. No. 248049, October 4, 2022)
Mental retardation includes (a) idiot, whose mental age is 2 years old; (b) imbecile,
whose mental age is 7 years old; (c) moron or feebleminded, whose mental age is 12
years old and (d) borderline intelligence. (People vs. Gilles, G.R. No. 229860, March 21,
2018)
Having sexual intercourse with the offended party, who is under 13 or 16 years
of age, is statutory rape. The word “age” in this provision includes chronological age and
mental age. Hence, having sexual intercourse with an idiot with a mental age of 2 years,
an imbecile with a mental age of 7 years, or feebleminded or moron with a mental age
of 12 years, or a person with borderline intelligence with a mental age of under 16 is
statutory rape (People vs. Daniega, G.R. No. 212201, June 28, 2017).
The term, "deprived of reason," is associated with insanity or madness. The term
"demented," refers to a person who suffers from a mental condition called dementia. A
mentally retarded person is not necessarily deprived of reason or demented. In fact, they
can be credible witnesses. However, they are immature, socially irresponsible, and
dependent (People vs. Daniega, supra; People vs. Niebres, G.R. No. 230975, December
04, 2017) Thus, an offender, who committed sexual intercourse with a mentally retarded
person, must be prosecuted for statutory rape of a person under 16 years of mental age,
and not rape against a person deprived of reason or demented person. (People vs. XXX,
G.R. No. 242684, February 17, 2021)
Under Section 5 (b) of RA No 7610 as amended by RA No. 10648, when the child
subjected to sexual abuse is under 16 years of age, the perpetrators shall be prosecuted
for rape and acts of lasciviousness under RPC. The word “age” in the phrase “when the
victim is under sixteen (16) years of age” in Section 5 (b) of RA No. 7610 is either
chronological or mental. (People vs. Pusing, G.R. No. 208009, July 11, 2016)
In exempting circumstance of imbecility, what is important is the mental age of
the accused. An idiot, whose mental age is 2 years, and an imbecile, whose mental age
is 7 years old (People vs. Butiong, G.R. No. 168932, October 19, 2011) 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) In exempting circumstance of minority, what is important is the actual
age of the accused. (People vs. Roxas, G.R. No. 200793, June 04, 2014)
Under Article 266-A of the Revised Penal Code before R.A. No. 11648, the offender
in rape through sexual intercourse is a man while the victim is a woman. Under Article
266-A of the Revised Penal Code as amended by R.A. No. 11648, the offender in rape
through sexual intercourse is a person while the victim is another person. The amended
provision reads as follows: “Rape is committed — 1. By a person who shall have carnal
knowledge of another person xxx.” Thus, rape through sexual intercourse under R.A.
No. 11648 is a gender-free crime. Hence, Z, a woman, can be an offender in rape, and
X, a man, can be an offended party therein.
If the victim is under 13 years of age, the offender, who shall have sexual
intercourse with her/him, is liable for statutory rape regardless of their age difference.
If the victim is 13 years of age or above but under 16 years of age, the offender,
who shall have sexual intercourse with her/him, is liable for statutory rape unless their
age difference is not more than three (3) years. The exempting circumstance of age
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difference of not more than three (3) years can only be appreciated if the sexual act in
question is proven to be consensual, non-abusive, and non-exploitative.
Non-abusive shall mean the absence of undue influence, intimidation, fraudulent
machinations, coercion, threat, physical, sexual, psychological, or mental injury or
maltreatment, either with intention or through neglect, during the conduct of sexual
activities with the child victim. On the other hand, non-exploitative shall mean there is
no actual or attempted act or acts of unfairly taking advantage of the child's position of
vulnerability, differential power, or trust during the conduct of sexual activities.
Abusive or exploitative acts committed before or after the sexual intercourse will
not consider in appreciating the exempting circumstance of close age. To negate the
appreciation of this exempting circumstance, the abusive or exploitative act must be
committed by the accused in statutory rape during the conduct of sexual activities with
the child.
Pedro is a feeble-minded person. His chronological age is 25 years old but his
mental age is 10 years old. Maria is also a feeble-minded person. Her chronological age
is 22 years old but her mental age is 12 years old. Pedro had sexual intercourse with
Maria.
a. Can Maria file a complaint for statutory rape against Pedro? Yes. Under Article
266-A of RPC, as amended by RA No. 11648, rape is committed by a person who
shall have carnal knowledge of another person when the offended party is under
16 years of age. The word “age” in the phrase “16 years of age” refers to
chronological age or mental age. (People v. Daniega, G.R. No. 212201, June 28,
2017) Since the mental age of Maria is under 16 years, having sex with her is
statutory age.
b. Can Pedro file a complaint for statutory rape against Maria? Yes. RA No.
11648 makes rape through carnal knowledge a gender-free crime because the
offender and victim are described as persons regardless of their gender. In sum,
Pedro can be a victim of rape and Maria can be an offender of rape. Since the
mental age of Pedro is under 16 years, having sex with him is statutory age.
c. Can Pedro and Maria in their respective cases for rape invoke the
exempting circumstance of minority because their mental age is under 15 years
of age? No. In an exempting circumstance of minority, the chronological age and
not the mental age of the offenders shall be considered to determine if they are
minors (People vs. Roxas, G.R. No. 200793, June 04, 2014). Since the
chronological ages of Pedro and Maria are 25 years and 22 years, respectively,
the exempting circumstance of minority under RA No. 9344 shall not be
appreciated because they are not minors;
d. Can Pedro and Maria in their respective cases for rape invoke the
exempting circumstance of imbecility? No. In an exempting circumstance of
imbecility, the mental age of the offenders shall be considered to determine if
they are imbecile. The mental age of an imbecile is at least 7 years while the
mental age of a moron or feeble-minded person is at least 12 years (People vs.
Roxas, G.R. No. 200793, June 04, 2014) Since Pedro and Maria are feebleminded persons, whose mental age is higher than that of an imbecile, the
exempting circumstance of imbecility cannot be appreciated.
e. Can Pedro and Maria in their respective cases for rape invoke the
exempting circumstance of close age? No. Under Article 266-A of RPC as
amended by RA No. 11648, statutory rape is committed when the offended party
is under 16 years of age: Provided, That there shall be no criminal liability on
the part of a person having carnal knowledge of another person under 16 years
of age when the age difference between the parties is not more than 3 years, and
the sexual act in question is proven to be consensual, non-abusive, and nonexploitative: Provided, further, That if the victim is under 3 years of age, this
exception shall not apply. Applying the Daniega principle by analogy, the word
“age” in the phrase “when the age difference between the parties is not more than
12 | P a g e
three (3) years” refers to chronological age and mental age. Thus, if the mental
or chronological age difference between the accused and the victim is not more
than 3 years, the former is exempt from criminal liability for statutory rape.
However, the exempting circumstance of close age cannot be appreciated if the
mental or chronological age of the victim is under 13 years. In this case, the
mental age of Pedro and Maria is under 13 years. Hence, they cannot respectively
invoke this exempting circumstance.
28. Failure to judicially charge within the prescribed period (12-18-36 hours)
renders the public officer effecting the arrest liable for the crime of delay in the delivery
of detained persons under Article 125 of the Revised Penal Code. If the warrantless arrest
was without any legal ground, the arresting officers become liable for arbitrary detention
under Article 124. However, if the arresting officers are not among those whose official
duty gives them the authority to arrest, they become liable for kidnapping and serious
illegal detention or slight illegal detention under Article 267 or 268. If the arrest is for the
purpose of delivering the person arrested to the proper authorities, but it is done without
any reasonable ground or any of the circumstances for a valid warrantless arrest, the
arresting persons become liable for unlawful arrest under Article 269. (Duropan vs.
People, G.R. No. 230825, June 10, 2020)
Arbitrary detention is committed by a public officer, who has the authority to
arrest and detain a person. Thus, a police officer, judge or mayor can commit arbitrary
detention. On the other hand, illegal detention such as unlawful arrets is committed by
private individual. Stenographer, who has no authority to arrest or detain a person,
cannot be held liable for arbitrary detention because he is acting in his private capacity.
A barangay kagawad and barangay tanod are public officers; but they have no authority
to arrest. If they lawfully arrested a criminal suspect, this is citizen arrest. If they
arrested a person without lawful cause, this is unlawful arrest. Arbitrary detention is
not committed since arresting criminals are not part of their functions (Duropan vs.
People, G.R. No. 230825, June 10, 2020)
Arbitrary detention is committed by a public officer in pursuit of his duty to
arrest. The element of “in pursuit of his duty to arrest” in arbitrary detention is present
if the purpose of the arrest is: (1) To deliver the suspect to judicial authority (U.S. v.
Gellada, G.R. No. L-5151, January 31, 1910); (2) To conduct criminal investigation (U.S.
v. Agravante, G.R. No. 3947, January 28, 1908); or (3) To determine if the victim
committed a crime. (U.S. v. Hawchaw, G.R. No. L-6909, February 20, 1912)
A police officers, who detained a suspected drug trafficker and demanded ransom
payment, committed the criminal act in their private capacity. (People v. Gonzalez, Jr.,
G.R. No. 192233, February 17, 2016) Detaining any private person for the purpose of
extorting any amount of money could not, in any way, be construed as within their
official functions of police officers. (People vs. Popionco, G.R. No. 200512, June 07,
2017) Hence, they are liable for kidnapping for ransom and not arbitrary detention.
Even the subsequent prosecution of the kidnapped victim for sale of dangerous drugs
does not negate the criminal liability of the accused for the crime the latter committed
against the former. (People vs. Borja, G.R. No. 199710, August 02, 2017)
Taking the prisoner to a secluded place for purposes of detaining and maltreating
him constitutes kidnapping and serious illegal detention qualified by the circumstance
of serious physical injuries. (People v. Santiano, G.R. No. 123979, December 3, 1998) A
soldier, who abducted a UP student and detained her at military camps, barangay hall
and a resort or safehouse, can be charged with kidnapping and serious illegal detention.
(Osorio v. Navera, G.R. No. 223272, February 26, 2018) Arbitrary detentions are not
committed since the accused in Santiano case and Osorio case did not commit the acts
in furtherance of official function or in the pursuit of authority vested in them. In sum,
they committed the acts in their purely private capacity.
29. Under Article 254 of RPC as amended by RA No. 10591, discharge of firearms
is committed (1) any person who shall shoot at another with any firearm unless the act
of discharging firearm constitutes frustrated or attempted parricide, murder, homicide,
or any other crime for which a higher penalty (e.g. robbery); or any person who shall
wilfully and indiscriminately discharge any firearm or other device that may not have
been designed as firearm, but can be functionally used as a firearm unless the act of
discharging constitute any other offense with a higher penalty (e.g., tumultuous
disturbance, or sedition)
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30. When falsification of public, official or commercial document is 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) or theft (People
vs. Salonga, G.R. No. 131131, June 21, 2001), offender is liable for a complex crime
under Article 48 of RPC.
When falsification of public, official or commercial document is not a necessary
means to commit other crimes, this is not a complex crime. Thus, when falsification of
public, official or commercial document is a merely 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), 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.
Complex crime of estafa through falsification of document is committed if the
offender needed to falsify the document in order to use the falsified document in
obtaining money or property from the complainant. If the offender, who needs to falsify
the document to defraud the victim, is an accountable officer (tax collector), this is
complex crime of malversation through falsification of public document. If the offender,
who needs to falsify the document to defraud the victim, is a non-accountable public
officer (payroll officer), this is complex crime of estafa through falsification of public
document.
Falsification and estafa, malversation or theft are separate crimes if the offender
is in possession of the property or money of the complainant, and thus, he can
misappropriate, malverse or steal it without the necessity of falsifying document. In this
situation, he merely falsifies the document to conceal estafa, malversation or theft.
Hence, falsification and estafa, malversation or theft are separate crimes.
Under the common element doctrine, the use of damage as an element of
falsification of private document precludes the re-use thereof to complete the elements
of estafa, and vice versa. Damage is an element of estafa; damage is also an element of
falsification of private document; hence, the common element principle is applicable
since damage is a common element of both crimes. The common element doctrine is
only applicable if the crimes committed are falsification of private document and estafa.
If the common element principle is applicable, the accused is liable for
falsification of private document or estafa. When falsification of private document is a
necessary means to commit estafa, the crime committed is falsification. When
falsification of private document is not a means to commit estafa, the crime committed
is estafa. (People vs. Co, G.R. No. 233015, October 16, 2019)
If the falsification of a private document (demand letter, letter of guarantee,
payroll of private company or billing statement) 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 reuse thereof to complete the elements of estafa. Hence, estafa is not committed because
the element of damage is not present. There is no complex crime of estafa through
falsification of private document. (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; People vs. Co, G.R. No. 233015, October 16, 2019)
If a person commits falsification of private document (e.g., unofficial receipt) 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).
The crime of use of falsified document, the person who used the forged document
is different from the one who falsified it. If the one who used the falsified document is
the same person who falsified it, the crime is only falsification and the use of the same
is not a separate crime. Falsification of a public document and use of false document
by the same person who falsified it constitute but a single crime of falsification. (Jayme
vs. People, G.R. No. 248827, August 27, 2020)
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31. Approving a voucher and signing a check without appropriation law will make
the approving public officer liable for technical malversation under Article 220 of RPC.
However, approving a voucher and signing a check without appropriation law, without
funding, and in violation of law prohibiting such payment will make the approving officer
liable for the graver crime of culpable malversation under Article 217 of RPC. Culpable
malversation is committed by a public officer, who knowingly allows another or others
to make use of or misappropriate public funds or property through abandonment or
negligence. (Sarion vs. People, G.R. Nos. 243029-30, March 18, 2021)
32. A and B are husband and wife. B is having a love affair with C. One evening,
A returning home sees C jump from the bedroom of their house. In the bedroom, A sees
B lying in bed. A gets his bolo and kills B. This is not death under exceptional
circumstance since A did not surprise his wife in the very act of infidelity. (People v.
Marquez, G.R. No. 31268, July 31, 1929
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. 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 the ordinary mitigating circumstance of passion.
R.A. No. 8353, the Anti-Rape Law, recognizes the distinction between sexual
intercourse, and fingering, cunnilingus or sodomy. Under this law, fingering,
cunnilingus, or sodomy of a victim through force constitutes sexual assault, and not
rape. Fingering, cunnilingus, or sodomy is not also within the contemplation of the term
“sexual intercourse,” which is an element of adultery, concubinage, or seduction. By the
same token, fingering, cunnilingus, or sodomy should be interpreted as outside the
context of the words “sexual intercourse” as an element of death under exceptional
circumstance. Killing the wife while in the act if having homosexual intercourse with
woman is not death under exceptional circumstance.
33. There are three requisites to make a killing as infanticide, to wit: (a) The infant
must be killed outside the maternal womb. An unborn fetus is not an infant. Hence,
killing an unborn fetus regardless of its viability or intrauterine life is not infanticide,
but abortion; (b) The infant must be viable. Even though the fetus is born alive, if it is
non-viable, it shall not be considered as an infant for purposes of the crime of
infanticide. Killing a non-viable fetus outside the womb is still abortion; and (3) The
infant must be less than three days old. For medical purposes, a 3-month-old child is an
infant. But for purpose of infanticide, an infant is a child less than 3 days old. A child
with a life of three (3) days or more is not an infant; hence killing a child, who is not an
infant, is not infanticide but parricide or murder.
If abortion or unintentional abortion is committed, and the mother also died, the
offender is liable for a complex crime of parricide, murder or homicide with intentional
or intentional abortion. Intent to abort is an important element of abortion. If the
intention is to kill the mother, but the fetus also died, the offender is liable for a complex
crime of parricide, murder or homicide with intentional abortion.
34. Death caused in a tumultuous affray is committed by a person or persons
identified as responsible for inflicting serious physical injuries or using violence upon
the deceased, who is killed by an unidentified person in the course of tumultuous affray.
(Article 251)
Physical injuries inflicted in a tumultuous affray is committed by a person or
persons identified as responsible for using violence upon a participant of a tumultuous
affray, who suffered serious or less serious physical injuries committed by an
unidentified person in the course thereof. (Article 252)
Tumultuous affray is also called free-for-all rumble. There is tumultuous affray
when several persons quarrel and assault each other in a confused and tumultuous
manner. However, the participants of the rumble must not compose of groups (e.g.,
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warring fraternities) organized for the common purpose of reciprocally assaulting and
attacking each other. (Article 251)
The provision on death caused in tumultuous affray is an evidentiary measure
designed to remedy a situation where the participant thereof, who killed the victim, was
not identified because of the confusion. Since there is uncertainty on whether the one,
who employed violence against the victim, killed him or merely inflicted physical injuries
on him, the former will be liable for death caused in a tumultuous affray punishable by
a penalty lesser than that for homicide or murder and generally higher than that for the
physical injuries inflicted by him. This is the rule on a middle penalty for a rumblerelated crime.
Failure to identify the offender who inflicted less serious physical injury upon the
victim is an important element of physical injuries inflicted in a tumultuous affray. If
the accused is positively identified as a person, who inflict the injuries on the victim,
the former is not entitled to the lesser penalty prescribed for physical injuries inflicted
in a tumultuous affray. In such a case, there is no confusion, which is the essence of
tumultuous affray. Hence, the accused is liable for the graver crime of less serious
physical injuries (Lacson vs. People, G.R. No. 243805, September 16, 2020)
35. In Guinhawa v. People, G.R. No. 162822, August 25, 2005, fraudulent
representation of the seller that the van to be sold is brand new constitutes other deceit
under Article 318. On the other hand, in People v. Rubaton, C.A., 65 O.G. 5048, false
representation that accused has a palay by reason of which the victim parted his money
in consideration of the palay constitutes estafa under Article 315. Unlike in the
Guinhawa case, the transaction in Rubaton case is imaginary. (Marcos vs. People, G.R.
No. 252839, November 10, 2021)
36. If the finder surrenders lost property to a policeman, the latter shall acquire
the position occupied by the former. In sum, as far as the law is concerned, the
policeman shall be considered the finder of the lost property. If the policeman fails to
deliver the lost property to the owner, he is liable for theft. Appropriating the property
by the policeman is of the same character as that made by one who originally found the
same. (Pante vs. People, G.R. No. 218969, January 18, 2021)
37. If the accused received the property with the consent of the owner but he
merely acquired physical possession in doing so (by reason of contract of employment,
boundary arrangement, or contract to repaint a car, obligation to immediately return
the property such bringing the gold to the goldsmith), 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 (Chua-Burce vs. CA, G.R.
No. 109595, April 27, 2000), carnapping (People vs. Bustinera, G. R. No. 148233, June
8, 2004).
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 (e.g., lease, agency, deposit,
commodatum, or quasi-contract, or partnership), misappropriation shall be considered
as estafa through conversion or misappropriation (Chua-Burce vs. CA, G.R. No. 109595,
April 27, 2000).
If the accused received the property with the consent of the owner and he
acquired ownership in doing so by virtue of a contract (e.g., 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)
As a rule, the possession of the employee such as bank teller, collector, cash
custodian or branch manager 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; People vs. Santos, G.R. No. 237982, October 14, 2020;
Manjares vs. People, G.R. No. 207249. May 14, 2021). 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
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fiduciary capacity with discretion on how to administer such fund (People vs. Go, G.R. No.
191015, August 6, 2014); b. A corporate treasurer who received the money for safekeeping and administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922; c. A
corporate officer with discretion option on how to use bending machine without the
participation of the corporation (D’Aigle vs. People, G.R. No. 174181, June 27, 2012).
However, in Remo vs. Devanadera, G.R. No. 192925, December 9, 2016, the Supreme
Court ruled that the directors of a corporation have no juridical possession over the
corporate funds.
If the crime charged is estafa through misappropriation, but the crime proven is
theft committed by an employee, whose possession over the property is merely physical,
the variance principle can be applied. Thus, the accused can be convicted of a qualified
theft because the latter crime was necessarily included in the crime of estafa charged in
the information. (Reside vs. People, G.R. No. 210318, July 28, 2020)
In Horca vs. People, G.R. No. 224316, November 10, 2021, Hernando, the
accused is charged with theft. The information alleged that the accused received from
the Sisters of Providence the amount of P1,005,626.50 under the express obligation of
delivering Swiss Air plane tickets for Rome to the complainant, but herein accused failed
to do so and did not return the same to the complainant, and once in possession of the
aforestated amount, she instead misappropriated the same. It was held the accused was
properly charged with the crime of theft because she was merely entrusted with the
material or physical possession of the sum of money which she was supposed to use for
the purchase of the airline tickets. Juridical possession, which means a possession that
gives the transferee a right over the thing transferred and that which he may set up even
against the owner, was never shown to have been transferred to accused.
Seller failed to return advance payment to the buyer after having incurred delay
in the performance of obligation under a contract of sale. The seller cannot be held liable
for estafa through misappropriation. In estafa through misappropriation, the offender
must have the obligation to return the very property that he received. The seller acquired
ownership over the money received as advance payment. In case of failure to perform
obligation under a sale contact, the seller has no obligation to return to the buyer the
very moneys with the same serial numbers received as advance payment. In returning
the advance payment, the seller can use moneys with different serial numbers. Hence,
his obligation to return the advance payment is merely civil in character. (People vs.
Salazar, G.R. No. 149472, August 18, 2004) The Salazar case involved estafa through
misappropriation. Hence, the accused cannot use the Salazar principle in a case
involving estafa through false pretense. In this case, accused misrepresented that he is
authorized to sell a land owned by Candelaria (a third person) to the complainant, where
in fact he is not authorized. He was convicted of estafa through false pretense. (Arriola
vs. People, G.R. No. 199975, February 24, 2020, Hernando)
Misappropriation by the industrial partner of the partnership fund to be used in
business of buying and selling mango is not theft because possession of the industrial
partner over the same is juridical. The concept of juridical possession is not compatible
with that of “taking without consent,” which is the essence of theft (People vs. Tan Tay
Cuan, CA, 57 OG 6964; US vs. Reyes, G.R. No. 2867, September 11, 1906). However,
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 through
misappropriation. The industrial partner is holding the money in trust of the
partnership. (Orbe vs. Miaral, G.R. No. 217777, August 16, 2017)
38. 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 complex crime of double murders (People vs.
Gaffud, G.R. No. 168050, September 19, 2008) To apply this principle, intent to kill
must be established beyond reasonable doubt. (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 qualifying circumstance of resulting death
(People v. Abayon, G.R. No. 204891, September 2016). Under PD No. 1613 and Article
320 of the Revised Penal Code, the penalty is higher if death results by reason of simple
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arson or destructive arson. The resulting homicide is absorbed (People vs. Villacorta,
G.R. No. 172468, October 15, 2008) since it will be considered as a qualifying
circumstance that will upgrade the penalty. To apply this principle, there must be no
intent to kill, and the killing of the victim is accidental.
If the main 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).
Pedro treacherously killed 2 victims, and burned the house to conceal the
killings. He is not aware that there is a baby in the house. As a consequence of the
burning of the house, the baby died. Pedro committed 2 murders. Arson committed to
conceal the crime is a separate crime. The death of the baby as a result of arson shall
be considered as a qualifying circumstance that will upgrade the penalty. The resulting
homicide is absorbed in arson since it will be considered as a qualifying circumstance.
Pedro treacherously killed 2 victims, and burned the house to conceal the killings
despite of the fact that he is aware that there is a baby in the house. Pedro committed
2 murders qualified by the circumstance of treachery and another murder qualified by
the circumstance of by means of fire. The intention of Pedro in burning the house is to
conceal the two murders and to kill the victim. There is intent to kill since he knows
that the baby will die as a consequence of burning the house. Hence, the burning of the
house is not arson, but murder.
40. Under Article 349, bigamy is committed by any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved.
The term "former marriage" in Article 349 refers to a valid marriage, and not a null and
void marriage. The term "second or subsequent marriage" in Article 349 refers to a
marriage which is valid in all aspect other than circumstance that is void for being
bigamous. Thus, voidness of the first or second marriage is a defense in bigamy. (Pulido
vs. People, G.R. No. 220149, July 27, 2021, Justice Hernando)
X contracted three marriages. His first wife is already dead when X contracted
his third marriage. 1. X is liable for bigamy for contracting the second marriage because
the first was still subsisting when he contracted the second. 2. X is not liable for bigamy
for contracting the third marriage because the first marriage has already been
extinguished by the death of the first wife when he contracted the third, and the second
marriage is void for being a bigamous marriage. Applying the Pulido case, Mendoza case,
and Aragon case, X need not obtain a judicial declaration of nullity of the second
marriage for being bigamous before entering into a third marriage for purpose of raising
the voidness of the former as a defense in bigamy. (Pulido case)
CBP is legally married to OEM. Without obtaining a marriage license, CBP
contracted a second marriage to RST. CBP committed the crime of illegal marriage.
Illegal marriage is committed by any person who shall contract marriage knowing that
the requirements of the law have not been complied with provided that the act is not
constitutive of bigamy. In this case, CBP married RST without complying with the
requirement on marriage license. The act of contracting a second marriage is not
constitutive of bigamy since the second marriage contracted without marriage license is
null and void. Applying the Pulido principle, there is no technically a second marriage
for being null and void, and hence, contracting a void second marriage is not bigamy.
39. In 2012, Rica published a story in an online news site, called Raffa, where it
was alleged that Mr. Willy, a businessman, who had a link with illegal drugs, and human
trafficking, lent a car to a former SC Chief Justice. After four months, RA No. 10175,
which punishes cybercrimes including cyber libel, was enacted. However, there are no
evidences proving the illegal activities of Mr. Willy. In 2014, the story was republished
in the said site. It is settled that a single defamatory statement, if published several
times, gives rise to as many offenses as there are publications. Each and every
publication of the same libel constitutes a distinct offense. This is the “multiple
publication rule” which is followed in our jurisdiction. (Soriano v. Intermediate Appellate
Court, G.R. No. 72383, November 9, 1988; Brillante v. CA, G.R. Nos. 118757 and
121571, October 19, 2004) With the multiple publication rule, Rica can be charged of
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libel for the 2012 publication of defamatory story, and cyber libel for the 2014
republication thereof without violating the rule on double jeopardy.
The penalty for libel under the Revised Penal Code is prision correccional in its
minimum and medium periods. If communication or information technology is used in
committing libel, RA No. 10175 provides that the penalty for libel shall be graduated
one degree higher. In sum, the penalty for cyber libel is prison correccional in its
maximum period to prision mayor in its minimum period.
The period for prescription for cyber libel is governed by Article 90 of the Revised
Penal Code. Act No. 3326 governs prescription of offense punishable under special law.
However, cyber libel is not punishable under special law. RA No. 10175 does not provide
a penalty for cyber libel. Hence, in a cyber libel case, the accused is actually being
charged with libel under the Revised Penal Code with the qualifying circumstance of
using information or communication technology under RA No. 10175. Since the crime
is punishable under the Revised Penal Code, the provision of the Code on prescription
and not Act 3326 will apply.
Under Article 90 of the Revised Penal Code, the crime of libel shall prescribe in
one year while crime punishable by prision mayor shall prescribe in 15 years. However,
the one-year rule is only applicable to libel and not to cyber libel. Hence, the 15-year
rule will apply since the highest component of the penalty for cyber libel is prision mayor
in its minimum period. (Tolentino v. People, G.R. No. 240310, August 6, 2018)
When the accused has been specifically identified as "author, editor, or
proprietor" or "printer/publisher" of the publication, there is no requirement to prove
that they had knowledge and participation in the publication of the libelous article.
Thus, a claim of absence of participation by those persons responsible under Article 360
will not shield them from liability. The law is clear: These persons are liable for libel as
if they were the author of the defamatory writing. (Macasaet vs. So, G.R. No. 187230,
January 11, 2021; People vs. Santos and Ressa, CA-G.R. No. 44991, July 7, 2022)
40. Under Section 10 (a) of RA No. 7610, child abuse pertains to acts of child
abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the
child's development not covered by the Revised Penal Code. From the plain language of
Section 10(a), the acts punished under it and those punished under the RPC are
mutually exclusive. Acts which are already covered by the RPC (e.g., oral defamation or
physical injuries) are excluded from the coverage of Section 10(a). (Brinas vs. People,
G.R. No. 254005, June 23, 2021) The intention of the law in using the phrase “not
covered by the Revised Penal Code” is to prosecute the offender either for the crime
under RA No. 7610 or felony under RPC and not for both crimes.
In sum, if the offender threatened to kill a child or inflicted injuries on him on
the spur of the moment without intent to degrade, debase or demean him, the former
should be charged with grave threat or physical injuries under the Revised Penal Code
without correlating it with RA No. 7610. On the other hand, if the offender threatened
to kill a child or inflicted injuries on him with intent to degrade, debase or demean him,
the former should be charged with child abuse under Section 10 (a) of RA No. 7610
without correlating it with the Revised Penal Code.
Accused saw the victim and his companions hurting his minor daughters.
Angered, accused struck minor-victim at the back with his hand and slapped his face.
Since the accused committed the act at the spur of the moment, they are perpetrated
without intent to degrade the dignity of the victim. Without such intent, the crime
committed is not child abuse under R.A. No. 7610 but merely slight physical injuries.
(Bongalon v. People, G.R. No. 169533, March 20, 2013)
Complainants, who are minors, threw ketchup sachets against the daughter of
the accused. But it was the accused, who was hit by the sachets twice. Accused
exclaimed, "Putang ina ninyo, gago kayo, wala kayong pinag-aralan, wala kayong utak,
subukan ninyong bumaba dito, pakakawalan ko ang aso ko, pakakagat ko kayo sa aso
ko." Threatening to release her dog to chase and bite the minors made in the heat of
anger is not child abuse. Accused merely intended that they stop their rude behavior.
Absence of any intention to degrade the dignity of minors, accused is only liable for
other light threats. (Escolano vs. People, G.R. No. 226991, December 10, 2018)
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Accused, a directress of Montessori school, uttered "pinakamalalandi,
pinakamalilibog, pinakamahadera at hindot, Mga putang ina kayo” against two minor
students. Accused’ acts were only done in the heat of anger, made after she had just
learned that the complainants had deceivingly used her daughter's name to send a text
message to another student, in what accused thought was part of a bigger and harmful
scheme against the student body. The accused was acquitted of child abuse for failure
to prove intent to degrade the complainants. (Brinas vs. People, G.R. No. 254005, June
23, 2021)
In Bongalon case, the accused were convicted of slight physical injuries instead
of child abuse. In Escolano case, accused was convicted of other light threats instead
of child abuse. In Brinas case, the accused were not held liable for child abuse or any
other crime.
The Bongalon principle is inapplicable: (1) if the accused did not assault a child
in the heat of anger or as a spontaneous reaction to his misbehavior; or (2) if the child
suffered serious physical injuries lacerations, fractured bones, burns, or internal
injuries.
In Patulot vs. People, G.R. No. 235071, January 7, 2019, throwing boiling cooking
oil, which directed against the mother of a baby and 3-year-old child, which
consequently burned the faces and skin of the minors, is not constitutive of child abuse
involving degrading the dignity of a child. Since throwing boiling oil is not directed
against the children, intent to degrade, debase or demean their dignity is not
established. However, the accused is still liable of child abuse involving the infliction of
serious physical injury.
Section 10 (a) of RA No. 7610 punishes child abuse. There are several crimes of
child abuse under Section 3 (b) thereof, the two of which are psychological and physical
abuse and any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being. Child abuse involving debasing,
demeaning or degrading a child under Section 3 (b) (2) is different from child abuse
involving psychological and physical abuse under Section 3 (b) (1). Under the
implementing rules, “physical injury” includes lacerations, fractured bones, burns,
internal injuries, severe injury or serious bodily harm suffered by a child.
In the case of Patulot, the information does not allege that the accused debased,
demeaned or degraded the complainants as children. The crimes alleged in the two
informations are child abuses involving burning under Section 3 (b) (1). Hence, even
without intent to degrade, debase or demean a child, the accused was convicted of two
counts of child abuse.
Article 233 of the Family Code prohibits the infliction of corporal punishment by
teachers. A schoolteacher in employing unnecessary violence on her minor student, who
even fainted, is liable for child abuse under RA No. 7610. (Rosaldes v. People, G.R. No.
173988, October 8, 2014)
41. Consent is immaterial in cases involving sexual abuse under R.A. No. 7610
where the offended party is below 16 years of age. However, consent is material when
the offended party is a child, who is 16 years old or above. In such a case, consent of
the child is a defense in cases involving sexual abuse. If the prosecution proved that the
accused have sexual intercourse with child through coercion or influence, or for
consideration, the sex is non-consensual. Consent given by a child under coercion,
influence or for a consideration is not recognized by the law. Hence, the accused is liable
for sexual abuse or child prostitution. If the prosecution failed to prove coercion or
influence, or consideration, the sex is consensual. Hence, the accused is not liable for
sexual abuse or child prostitution.
In Bangayan vs. People, G.R. No. 235610, September 16, 2020, there are special
circumstances that reveal the presence consent of AAA. The sexual congress between
accused and AAA was not limited to just one incident. They were in a relationship even
after the incident alleged in the Information and had even produced two (2) children. It
is clear that AAA, who is capable to discern good from evil, give consent to the sexual
act. Accused was acquitted. Note: Prosecution failed to prove coercion or influence.
However, child cohabitation is now a crime under RA No. 11596.
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42. If the acts constitute sexual abuse and rape, sexual assault, or acts of
lasciviousness, the accused can neither be prosecuted for both crimes because of the
rule of double jeopardy nor for complex crime since sexual abuse is punishable under
special law. Components of complex crime must be felonies (People vs. Abay, G.R. No.
177752, February 24, 2009)
If the child is 16 years old or more, and the act of the offender constitutes rape
and sexual abuse, he shall be prosecuted for the graver crime of rape under the Revised
Penal Code. Prosecuting the accused for the lesser crime of sexual abuse under RA No.
7610 is unfair to the child and will go against the spirit of RA No. 7610 to protect
children by prescribing a higher penalty. (People vs. Tulugan, G.R. No. 227363, March
12, 2019) Moreover, RA No. 8353, which amended the Revised Penal Code on rape, is
the more recent and special penal legislation and this law strengthens the policies of RA
No. 7610. (People vs. ZZZ, G.R. No. 232329, April 28, 2021, Hernando)
If the child is 16 years old or more, and the act of the offender constitutes sexual
assault or acts of lasciviousness and sexual abuse, the accused shall be prosecuted for
graver crime of sexual abuse under RA No. 7610. In this situation, sexual abuse shall
be called lascivious conduct. Prosecuting the accused for the lesser crime of sexual
assault or acts of lasciviousness under the Revised Penal Code is unfair to the child and
will go against the spirit of RA No. 7610 to protect children by prescribing a higher
penalty. (People vs. Tulugan)
If the child is under 16 years old, and the act of the offender constitutes rape and
sexual abuse, the accused shall be prosecuted for graver crime of statutory rape under
the Revised Penal Code. Under Section 5 (b) of RA No. 7610 as amended by RA No.
11648, when the child subjected to sexual abuse is under 16 years of age, the
perpetrators shall be prosecuted for statutory rape under RPC.
If the child is under 16 years old, and the act of the offender constitutes acts of
lasciviousness and sexual abuse, the accused shall be prosecuted for acts of
lasciviousness under the Revised Penal Code in relation to RA No. 7610. Under Section
5 (b) of RA No. 7610, when the child subjected to sexual abuse is under 16 years of age,
the perpetrators shall be prosecuted for rape or lascivious conduct, Provided, That the
penalty for lascivious conduct shall be reclusion temporal in its medium period. Acts of
lasciviousness is within the contemplation of the words “lascivious conduct” in RA No.
7610. (People vs. XXX, G.R. No. 233867, February 28, 2022, Hernando)
If the child is under 16 years old, and the act of the offender constitutes simple
sexual assault and sexual abuse, the accused shall be prosecuted for sexual assault
under the Revised Penal Code in relation to RA No. 7610. Under Section 5 (b) of RA No.
7610, when the child subjected to sexual abuse is under 16 years of age, the
perpetrators shall be prosecuted for rape or lascivious conduct, Provided, That the
penalty for lascivious conduct shall be reclusion temporal in its medium period. Since
reclusion temporal in its medium period under RA No. 7610 is higher than the penalty
(of prision mayor) for sexual assault under the Revised Penal Code, it is only fair for the
child to impose the graver penalty under RA No. 7610. In sum, sexual assault is within
the contemplation of the word “lascivious conduct” in Section 5 of RA No. 8710. (People
vs. Pueyo. G.R. No. 192327, February 26, 2020, Hernando)
If the victim is under 16 years old, and the act of the offender constitutes qualified
sexual assault and sexual abuse, the accused shall be prosecuted for qualified sexual
assault and penalized under the Revised Penal Code. Under Section 5 (b) of RA No. 7610,
when the child subjected to sexual abuse is under 16 years of age, the perpetrators shall
be prosecuted for rape or lascivious conduct, Provided, That the penalty for lascivious
conduct shall be reclusion temporal in its medium period. Since the Revised Penal Code
prescribes a grave penalty of reclusion temporal for qualified sexual assault, there is no
need to apply the penalty under RA No. 7610. In sum, qualified sexual assault is within
the contemplation of the word “rape” in Section 5 of RA No. 8710. (People v. Bonaagua,
G.R. No. 188897, June 6, 2011)
As a general rule, in a case where the victim is a minor, accused should not be
charged with a felony such as grave threat or robbery with rape in relation to RA No.
7610. If the information charged the accused with a felony in relation to RA No. 7610,
the court must delete the correlation. (People vs. Bueza, G.R. No. 242513, November 18,
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2020, Hernando; People vs. Ybanez, G.R. No. 247750, May 05, 2021) Felonies under
RPC and crimes under RA No. 7610 are different and independent from each other.
However, there are occasions where a felony defined under Revised Penal Code is
punishable by a penalty prescribed by RA No. 7610. Section 5 and 10 of RA No. 7610
as amended by RA No. 11648 prescribe penalties for: (1) acts of lasciviousness
committed against a child exploited in prostitution or other sexual abuse, who is under
16 years of age, and (2) homicide, other intentional mutilation and serious physical
injuries committed against a child under 12 years of age. In such a case, a correlation
of RPC to RA No. 7610 in charging the accused is allowed.
If the accused is prosecuted for rape or statutory rape under RPC, convicting the
accused for rape under RPC in relation to RA No. 7610 is improper. Hence, the
correlation to RA No. 7610 must be deleted. (See: People vs. ZZZ, G.R. No. 232329, April
28, 2021, Hernando; People vs. XXX, G.R. No. 225781, November 16, 2020, Hernando;
People vs. XXX, G.R. No. 246194, November 04, 2020, Hernando) If the accused is
prosecuted for acts of lasciviousness against a child (under 16 years of age) with the
penalty of reclusion temporal in its medium period under Section 5 of RA No. 7610,
convicting him under RPC in relation to RA No. 7610 is proper. (See: People vs. Eulalio,
G.R. No. 214882, October 16, 2019, Hernando)
43. The acts under Section 4 (a and e) of RA 9208 do not require proof of actual
sexual intercourse to establish the purpose of prostitution or sexual exploitation. It is
enough that the act, transaction, scheme or design involving the use of a person by
another for sexual intercourse or lascivious conduct in exchange for a consideration is
proven. In this case, BBB's and PO3 Ong's respective testimonies that YYY offered them
use of the VIP rooms for sexual services by any of the girls working in the bar whom
they fancied for a fee consummates the offense of trafficking in persons. (XXX vs. People,
G.R. No. 225288, June 28, 2021, Hernando; see also: People vs. Estonilo, G.R. No.
248694, October 14, 2020)
The person, who knowingly leases or subleases, uses, or allows to be used any
house, building, or establishment for the purpose of promoting trafficking in persons is
liable for promoting trafficking in person (Section 5 of RA No. 9208). The pimp is liable
for trafficking in person (Section 4). The customer of the trafficked prostitute is liable
for the use of a trafficked victim (Section 11). The trafficked prostitute is exempt from
criminal liability for the crime of prostitution (Sections 17 and 32)
In People vs. Sayo, G.R. No. 227704, April 10, 2019, the accused owned a house
where its room was offered for lease for every paying customer of the complainants, who
engaged in sex for a fee. The accused is aware of these prostitution activities since he
cleaned the room after the complainant and her customer finished using it. Moreover,
he sold condoms to the complainant's male customers before using the room. The
accused is liable for promoting trafficking in person.
44. XXX and YYY maintained their three biological children (minors) to perform
acts of cybersex on pornographic websites for different foreign customers in exchange
for money or ordering them to dance naked in front of a computer with internet
connectivity while facilitating the webcam sessions and chatting with a particular
customer. They are liable for three counts of qualified trafficking in persons. XXX and
YYY achieved their criminal design by requiring their children to perform acts of
cybersex for different foreign customers by taking advantage of their children’s
vulnerability as minors and deceiving them that the money they make from their lewd
shows is needed for the family’s daily sustenance. The circumstances that the victims
are minors and the traffickers are ascendants of the victims qualify the crime. (People v.
XXX, G.R. No. 235652, July 9, 2018)
XXX induced his 14-year-old girlfriend to send him pictures of her vagina and
breasts through Facebook Messenger using a mobile phone. He was convicted of cyber
child pornography (now online sexual abuse and exploitation of a child) for persuading
or inducing a child through a computer system to perform in the creation or production
of any form of child pornography. (Cadajas v. People, G.R. No. 247348, June 15, 2022)
XXX induced his 14-year-old girlfriend to dance nude during his birthday party.
The crime committed is indecent shows under Section 9 of R.A. No. 7610, which
punishes a person who shall persuade or induce a child to perform in indecent shows,
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whether live or in video. Note: RA No. 11930 is not violated since the crime is not
committed online.
XXX and YYY maintained three poor adult women to perform acts of cybersex on
pornographic websites for different foreign customers in exchange for money or ordering
them to dance naked in front of a computer with internet connectivity while facilitating
webcam sessions and chatting with a particular customer. They are liable for trafficking
in persons. R.A. No. 9208 punishes a person who shall maintain a person for
pornography by taking advantage of their vulnerability due to poverty.
XXX asked an adult woman to send him pictures of her vagina and breasts
through Facebook Messenger using a mobile phone in consideration of P500,000.00.
The woman agreed. This is not trafficking in person because XXX is not hiring,
maintaining, etc. the woman to engage in pornography. Child pornography or indecent
show under R.A. No. 7610 is not committed since the woman is not a child. XXX and
the woman are liable for cybersex since the lascivious exhibition of sexual organs was
committed with the aid of a computer system for consideration. Cybersex under R.A.
No. 10175 includes cyber pornography for favor and consideration. (Disini v. Secretary
of Justice, G.R. No. 203335, February 18, 2014)
XXX induced his 19-year-old girlfriend to send him pictures of her vagina and
breasts through Facebook Messenger using a mobile phone. XXX is not criminally liable.
Cyber child pornography is not committed since his girlfriend is not a child. Cybersex is
not committed. The congressional deliberation shows that the element of “for favor or
consideration” means that the offender is engaging in the business of providing online
pornographic viewing. (Disini v. Secretary of Justice) However, XXX is not engaged in
pornographic business.
Maria, a lawyer, for consideration of P5,000.00, danced and undressed herself in
front of Em while the music “making love out of nothing at all” was being played. This is
not trafficking in person because Em is not hiring, maintaining, etc. Maria to engage in
pornography, and there is no taking advantage of her vulnerability. A lawyer is not
vulnerable to being exploited in pornography. Child pornography or indecent show
under R.A. No. 7610 is not committed since Maria is not a child. Cybersex is not
committed since the lascivious exhibition of sexual organs was not made with the aid of
a computer system. The crime committed is indecent show under the Revised Penal
Code, which punishes those who shall exhibit indecent shows in theaters, fairs,
cinematographs, or any other place, whether live or in film.
45. The defense claimed that the accused was insane at the time of the incident
because he tested positive for a dangerous drug. Using drug intoxication as a defense is
perplexing taking into consideration that the use of dangerous drugs is considered a
qualifying circumstance under Section 25 of RA 9165. (People vs. Pilen, G.R. No.
254875, February 13, 2023, Hernando)
To establish the first link in the chain of custody, and that is the seizure of the
drug from the accused, the prosecution must comply with Section 21 of R.A. No. 9165
as amended by R.A. No. 10640. Under Section 21 of RA No. 9165 as amended, the
inventory and photography of the seized items must be made in the presence of “at least
three persons”, to wit: (1) the accused; (2) elected public official, and (3) the media or
representatives of National Prosecution Service. Compliance with the three-witnesses
rule is mandatory. So as not to render the seizures of evidence void, two requisites must
be present: (1) justifiable ground for not complying with the three-witnesses rule and (2)
that the integrity and evidentiary value of the evidence had been preserved. (People vs.
Claudel, G.R. No. 219852, April 3, 2019, Justice Caguioa)
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) any elected public official, and (3) the media or
representatives of National Prosecution Service. 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 (CICL v. People,
G.R.230964, March 02, 2022, Hernando)
The following are justifiable grounds for failure to comply with the three23 | P a g e
witnesses rule: 1. The attendance of elective official and media or NPS representative
was impossible because the place of arrest was a remote area; 2. The safety of these
required witnesses during the inventory and photograph of the seized drugs was
threatened by an immediate retaliatory action of the accused or any person acting for
and in his behalf; 3. The elected official themselves were involved in the punishable acts
sought to be apprehended; 4. The time constraints and urgency of the anti-drug
operations, which often rely on tips of confidential assets, prevented the law enforcers
from obtaining the presence of the required witnesses even before the offenders could
escape; or 5. Earnest efforts to secure the presence of these required witnesses within
the period required under Article 125 of RPC prove futile through no fault of the
arresting officers, who face the threat of being charged with arbitrary detention. (People
vs. Lim, G.R. No. 231989, September 4, 2018; People vs. Addin, G.R. No. 223682,
October 09, 2019, Hernando; People vs. Mariano, G.R. No. 247522, February 28, 2022,
Hernando)
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 unconstitutional for
being contrary to the rule-making authority of the Supreme Court (Estipona, Jr. vs.
Lobrigo, G.R. No. 226679, August 15, 2017). Following this pronouncement, the
Supreme Court issued A.M. No. 18-03-16-SC providing for a plea-bargaining framework
in drugs cases, while the Secretary of Justice issued DOJ Circular No. 27 on plea
bargaining. The Supreme Court guidelines on acceptable plea bargaining are different
from those provided by the DOJ. On July 26, 2022 the Supreme Court came out with a
Clarificatory Guidelines on Plea-Bargaining in Drugs Cases under which the Dangerous
Drugs Courts can overrule the objection of the public prosecutor to accused’s motion to
plea to a lesser offense and allow plea-bargaining even without the consent to the
prosecutor. The court is required to reject the objection of the prosecutor based on the
circumstance that the proposed plea is not in accordance with the DOJ guidelines. In
sum, what is important is the SC guidelines.
46. A violation of a law (e.g., a law on public bidding) that is not penal in nature
does not, as it cannot, automatically translate into a violation of Section 3(e) of RA No.
3019. (Concurring opinion of Justice Caguioa, Villarosa vs. People, G.R. Nos. 23315563, June 23, 2020) Violations of the applicable procurement laws (that generally
required public bidding) do not mean that the elements of the crime under Section 3 (e)
of RA No. 3019 are already present as a matter of course. For there to be a violation
under Section 3 (e) of R.A. No. 3019 based on a breach of applicable procurement laws,
one cannot solely rely on the mere fact that a violation of procurement laws has been
committed. It must be shown that (1) the violation of procurement laws caused undue
injury to any party or gave any private party unwarranted benefits, advantage or
preference; and (2) the accused acted with evident bad faith, manifest partiality, or gross
inexcusable negligence. (Martel vs. People, G.R. No. 224720-23, February 2, 2021, )
such as awarding contract without public bidding to a relative (Cabrera v. People, G.R.
Nos. 191611-14, July 29, 2019; People v. Austria, G.R. 243897, June 08, 2020) or
involving overpriced fire extinguishers and the supplies. (Oani v. People, G.R. No.
139984, March 31, 2005; People vs. Caballes, G.R. No. 250367 & 250400-05, August 31,
2022, Hernando)
In Arias v. Sandiganbayan, G.R. Nos. 81563 and 82512, December 19, 1989, the
property bought by the City is overpriced. When the accused was appointed as
treasurer, the sale of the property had already been consummated. Accused was
charged with violation of Section 3(e) of R.A. No. 3019 for causing damage to the
government through manifest partiality and evident bad faith. The only evidence
presented by the prosecution is his signature on the voucher. He was acquitted. Heads
of offices can rely to a reasonable extent on their subordinates on preparation of bids,
purchase of supplies, or negotiations. Any executive head agencies or commissions can
attest to the volume of papers that must be signed. Thus, executive head cannot be
convicted on the sole basis of signature or approval appearing on a voucher. To sustain
a conspiracy charge and conviction, evidence must be presented other than her
signature on the voucher.
The principle in the Arias case is not applicable in the following cases:
a. If other than the accused’s signature on the voucher, circumstances show
evident bad faith, or manifest partiality such as: (1) Where the accused has
foreknowledge of existing anomaly – e.g., mayor signed the inspection report and the
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disbursement voucher despite the fact that he had foreknowledge that the materials
delivered by Guadines have already been confiscated by the DENR (Escara v. People,
G.R. No. 164921, July 8, 2005); or (2) where accused approved the voucher without
indication of the retention money required by law, and he even inspected the
construction site of hospital boat being constructed, in which he should have noticed
the financial weakness of the contractor and the defective works (Rivera v. People, G.R.
No. 156577, December 3, 2014);
b. If other than the accused’s signature on the voucher, circumstances show
gross inexcusable negligence such as where there is deviation from ordinary procedure,
which necessitate further investigation – e.g., mayor issued and encashed municipal
checks despite the facts that the disbursement vouchers were in the name of Kelly
Lumber but the checks were payable to another person and not to Kelly Lumber (Cruz v.
The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005) or if there were
circumstances that should have prompted them to make further inquiries on the
transactions subject of this case. (Abubakar vs. People, G.R. No. 202408, June 27, 2018)
c. If the public officer acting in his capacity as head of office has not relied on his
subordinates but on officers of equal rank such as heads of the Office of the City
Treasurer and, the Office of the City Accountant in approving the cash advances in the
amount of P18 million to paymaster despite of the failure to liquidate previous cash
advances (Jaca v. People, G.R. No. 166967, January 28, 2013); and
d. If the documents involving the release of funds are not so voluminous so as to
preclude him from studying each one carefully. (Santillano v. People, G.R. Nos. 175045–
46, March 3, 2010)
Caballes failed to prove that the Arias case is applicable to him. Unlike
in Arias, there exists in the instant case several circumstances which should have
alerted Caballes to be on guard and examine the several supporting documents sent to
his office with some degree of circumspection before signing the RIVs, POs, and/or DVs.
To restate, Caballes' role in the procurement/purchases is evident from the fact that he
signed different documents at different stages, from the RIV, to the PO, to the DV, and
even until the final stage of receiving the items delivered, as shown in the Certificates of
Acceptance which he also signed. Therefore, the Court cannot extend the protection
afforded by the Arias doctrine to Caballes. (People vs. Caballes, G.R. No. 250367 &
250400-05, August 31, 2022, Hernando)
The crime of violation of Section 3(a) of RA 3019 may be committed in either of
the following modes: (1) when the offender persuades, induces, or influences another
public officer to perform an act constituting a violation of rules and regulations duly
promulgated by a competent authority or an offense in connection with the official duties
of the public officer; or (2) when the public officer allowed himself to be persuaded,
induced or influenced to perform said act which constitutes a violation of rules and
regulations promulgated by a competent authority or an offense in connection with the
official duties of the public officer. (Marzan vs. People, G.R. No. 226167, October 11,
2021, Hernando)
In Marzan vs. People, a senior jail officer released the detainees under a
recognizance issued by a provincial legal officer in disregard of a commitment order
issued by the court and in violation of BJMP rules and regulations. The provincial legal
officer violated Section 3(a) of RA 3019 of the first mode. As a public officer, the
provincial legal officer persuaded, induced, or influenced another public officer to
release the detainees in violation of BJMP rules. The senior jail officer violated Section
3(a) of RA 3019 of the second mode. As a public officer, the senior jail officer allowed
himself to be persuaded, induced, or influenced by the provincial legal officer to release
the detainees in violation of BJMP rules.
In the Marzan case, it was held that the law is clear that the second mode merely
requires that the offender who allowed himself to be persuaded, induced, or influenced,
is a public officer. Thus, in reference to the second mode of Section 3(a) of RA 3019, it
is immaterial whether the one who induced him was likewise a public officer or a private
individual (such as the father of one of the detainees).
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If a public officer induces another public officer to violate rules and regulations or
to commit a function-related offense, and the latter allows himself to be induced, the
inducer is liable under Section 3 (a) of RA No. 3019 of the first mode, while the induced
under Section 3 (a) of the second mode.
If a private individual induced a public officer to violate rules and regulations or
to commit a function-related offense, and the latter allows himself to be induced, the
inducer is liable under Section 4 (b) of RA No. 3019 while the induced is liable under
Section 3 (a) of the second mode. Section 4 (b) provides that it shall be unlawful for any
person knowingly to induce or cause any public official to commit any of the offenses
defined in Section 3 hereof.
If a public officer or private individual induces another public officer to violate
rules and regulations or commit a function-related offense, but the latter refuses to be
induced, only the inducer is liable under Section 3 (a) or Section 4 (b).
47. If there are several accused in plunder case, who acted under a single
conspiracy, or wheel conspiracy, or chain conspiracy, the main plunderer must be
identified. The law on plunder requires that a particular public officer must be identified
as the one who amassed, acquired or accumulated ill-gotten wealth in the amount of at
least P50 million. Surely, the law requires in the criminal charge for plunder against
several individuals that there must be a main plunderer and her co-conspirators. (See:
Arroyo vs. People, G.R. No. 220598, April 18, 2017)
In Arroyo vs. People, supra, a case for plunder involving the misappropriation of
PCSO funds amounting to P360 million was filed against ten (10) accused including
President Arroyo. However, the information did not identify President Arroyo or any
other accused as the principal plunderer. Hence, the case was dismissed. It was held
that because plunder is a crime that only a public official can commit by amassing,
accumulating, or acquiring ill-gotten wealth in the aggregate amount or total value of at
least ₱50,000,000.00, the identification in the information of such public official as the
main plunderer among the several individuals thus charged is logically necessary under
the law itself. The individuals charged therein were 10 public officials; hence, it was only
proper to identify the main plunderer or plunderers among the 10 accused who herself
or himself had amassed, accumulated, or acquired ill-gotten wealth with the total value
of at least ₱50,000,000.00.
Plunder can be committed by the public officer acting alone (Ejercito v.
Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006, Concurring opinion of Justice
Panganiban) Plunder can be committed by the public officer in connivance with other
persons. If the public officer committed plunder in connivance with other persons, the
“other persons” or the participants (secondary offenders) are also liable on the basis of
conspiracy. Moreover, the participants, with whom the public officer connived in
committing plunder, are liable under R.A. No. 7080. Under Section 2 of this law, any
person who participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense.
In single conspiracy, the public officer conspired with a single individual or
group in committing plunder. The main plunderer in this case must be a public officer.
But the participants in this case can be public officers or private individuals. In Juan
Ponce Enrile v. People, G.R. No. 213455, August 11, 2015, in the crime of plunder, the
amount of ill-gotten wealth acquired by each accused in a conspiracy is immaterial for
as long as the total amount amassed, acquired or accumulated is at least P50 million.
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.
v. People, G.R. No. 145927, August 24, 2007) In wheel conspiracy involving plunder, the
public officer (main plunderer 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.
48. Section 12 of RA No. 11053 provides that the defense that the recruit,
neophyte, or applicant consented to being subjected to hazing shall not be available to
persons prosecuted for hazing. Any form of approval, consent, or agreement, whether
26 | P a g e
written or otherwise, or of an express waiver of the right to object to the initiation rite
or proceeding, which consists of hazing, made by a recruit, neophyte, or applicant
prior to an initiation rite that involves inflicting physical or psychological suffering,
harm, or injury, shall be void and without any binding effect on the parties.
Generally, mere presence at the scene of the crime does not in itself amount to
conspiracy. (Dungo v. People, supra) However, under RA No. 8049 as amended by RA
No. 11053, mere presence can be a source of criminal liability. Section 14 punishes all
persons who are present in the conduct of the hazing. However, the penalty is
higher if the persons, who are present during the hazing, are (1) officers of the
fraternity, sorority, or organization; (2) former officers, nonresident members, or
alumni thereof; and (3) members thereof who are intoxicated or under the influence of
alcohol or illegal drugs.
The law punishes all persons, who actually planned the conduct of the
hazing. The original version of RA No. 8049 merely punished officers, former officers,
or alumni of the fraternity, sorority or organization, who actually planned the hazing.
Under this law as amended by RA No. 11053, any person including a non-member is
criminally liable for planning the conduct of hazing. Even though these planners were
not present when the acts constituting hazing were committed, they shall still be liable
as principals.
The law also punishes the adviser of a fraternity, sorority, or o r g ani za ti o n
who i s pr esen t wh en th e a cts constituting the hazing were committed and failed
to take action to prevent the same from occurring or failed to promptly report the
same to the law enforcement authorities if such adviser or advisers can do so
without peril to their person or their family. The liability of the adviser arises, not
only from his mere presence in the hazing, but also his failure to prevent the same.
(Dungo v. People, supra)
The owner or lessee of the place where hazing is conducted shall be liable as
principal, when such owner or lessee has actual knowledge of the hazing conducted
therein but failed to take any action to prevent the same from occurring or failed to
promptly report the same to the law enforcement authorities if they can do so without
peril to their person or their family.
If the hazing is held in the home of one of the officers or members of the fraternity,
sorority, or organization, the parents shall be held liable as principals when they have
actual knowledge of the hazing conducted therein but failed to take any action to prevent
the same from occurring or failed to promptly report the same to the law enforcement
authorities if such parents can do so without peril to their person or their family.
The school authorities including faculty members as well as barangay, municipal,
or city officials shall be liable as an accomplice and likewise be held administratively
accountable for hazing conducted by the fraternities, sororities, other organizations, if
it can be shown that the school or barangay, municipal, or city officials allowed or
consented to the conduct of hazing, but such officials failed to take any action to prevent
the same from occurring or failed to promptly report to the law enforcement authorities
if the same can be done without peril to their person or their family.
49. Physical violence against woman is punishable under Section 5 (a). However,
if physical violence caused mental or emotional anguish to the victim, the offender may
be prosecuted for psychological violence against woman under Section 5 (i). Physical
violence will be considered as an element of psychological violence.
In Dinamling v. People, G.R. No. 199522, June 22, 2015, accused’s acts of publicly
punching, kicking and stripping the victim of her pants and underwear, although
obvious acts of physical violence, are also instances of psychological violence since it
was alleged and proven that they resulted in her public ridicule and humiliation and
mental or emotional distress. Accused was convicted of the psychological violence
against woman. Physical violence was treated as a mere element of the graver crime of
psychological violence against woman.
Deprivation of legal support under the Family Code by a man to his wife or
children may constitute economic violence against a woman under Section 5 (e) of RA
No. 9262 or psychological violence against a woman under Section 5 (i). However,
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deprivation of financial support per se does not violate RA No. 9262 unless it is
accompanied by the other elements of economic violence or psychological violence.
The crimes penalized under Section 5 (i) and 5 (e) of RA No. 9262 are mala in se,
and not mala prohibita, even though R.A. No. 9262 is a special law. The acts punished
therein are inherently wrong and the language used under the said special laws requires
a mental element. Being a crime mala in se, there must thus be a concurrence of both
actus reus (criminal act) and mens rea (criminal intent) to constitute a crime. (Acharon
vs. People, G.R. No. 224946, November 9, 2021)
The willful deprivation of financial support is the actus reus of economic violence
under Section 5 (e), while the mens rea is the intention to control or restrict the woman’s
conduct. To violate Section 5 (e), there must be allegation and proof that the act was
done with intent to control or restrict the woman’s and/or child’s or her children’s
actions or decision.
The actus reus of psychological violence under Section 5 (i) is the willful denial of
financial support, while the mens rea is the intention to inflict mental or emotional
anguish upon the woman. To violate Section 5 (i), there must be allegation and proof
that the accused had the intent of inflicting mental or emotional anguish upon the
woman, with the willful denial of financial support being the means selected by him to
accomplish the said purpose.
In Acharon vs. People, supra, the Supreme Court finds the accused not guilty of
psychological violence under Section 5 (i) for he tried, as he successfully did for a time,
to provide financial support to his wife. The accused failed to provide financial support
only when his apartment in Brunei was razed by fire, and when he met a vehicular
accident there. Moreover, he had already paid P71,000 of the P85,000 of the debt the
spouses were obligated to pay out of their community property. The Court also found
the accused not guilty of economic violence under Section 5 (e). There is no proof that
he deliberately refused to give support in order to control the behavior or actions of his
wife. Neither was there any allegation or proof that he prevented his wife from seeking
gainful employment or pursuing economic opportunities.
Concubinage and bigamy are punishable under the Revised Penal Code. However,
if concubinage or bigamy caused mental or emotional anguish to the offended wife, the
offending husband may be prosecuted for psychological violence against a woman.
(Araza vs. People, G.R. No. 247429, September 8, 2020)
In Araza vs. People, G.R. No. 247429, September 8, 2020, accused left his wife
and decided to stay in Zamboanga City where he maintained an illicit affair. He
intentionally left his wife groping in the dark. Without any explanation or mature
conversation with his wife, he simply left his wife causing the latter emotional and
psychological distress. Accused committed the crime of psychological violence, through
his acts of marital infidelity, which caused mental or emotional suffering on the part of
his wife. (See: XXX vs. People, G.R. No. 241390, January 13, 2021; XXX vs. People, G.R.
No. 243049, October 05, 2020; XXX vs. People, G.R. No. 250219, March 1, 2023,
Hernando)
If the wife suffered emotional distress due to infidelity by the husband, the latter
could be prosecuted for violence against woman under R.A. No. 9262 in addition to
concubinage. The differences between the two are as follows:
a. Unlike concubinage, cohabitation, maintaining a mistress, or scandalous
circumstance is not an element of violence against women. Unlike violence against
women, emotional distress is not an element of concubinage;
b. The court has no territorial jurisdiction over concubinage committed outside
the Philippines. The court has territorial jurisdiction over psychological violence against
women if the act of infidelity committed in a foreign country produces emotional distress
to the woman and her children in the Philippines. (AAA v. BBB, G.R. No. 212448,
January 11, 2018)
c. Concubinage, a private crime, can only be prosecuted under two conditions:
(a) a complaint is filed by the offended wife against both the husband and his mistress;
and (b) the offended wife has not consented or pardoned the offenders. (Article 334 of
the Revised Penal Code) Violence against women and their children shall be considered
28 | P a g e
a public offense that may be prosecuted upon filing a complaint by any citizen having
personal knowledge of the circumstances involving the commission of the crime.
(Section 25 of R.A. No. 9262)
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