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1. Territoriality – The ground occupied by US embassy is in fact the territory of the USA
to which the premises belong through possession or ownership. A person who committed a crime
within the premises of an embassy will be prosecuted under the law of Philippines because of the
principle of territoriality (Reagan vs. Commission on Internal Revenue, G.R. No. L-26379,
December 27, 1969).
a. Effects - For purpose of venue and territoriality principle in Article 2 of the Revised
Penal Code, the place of commission of the criminal act and the place of occurrence of the effect
of such act which is an element of the offense shall be considered. If one pulled the trigger of his
gun in Quezon City and hit the victim in City of Manila, who died as a consequence, Quezon City
and City of Manila, which are the places of commission of the criminal act and the occurrence of
the criminal effect, are proper venues. If the psychological violence consisting of marital infidelity
punishable under RA No. 9262 is committed in Singapore but the psychological effect occurred
in the Philippines since the wife of the respondent, who suffered mental anguish, are residing in
the Philippines, our court can assume jurisdiction (see: AAA vs. BBB, G.R. no. 212448, January
11, 2018). However, if the commission of the criminal act consummates the crime and the effect
thereof is not an element of the crime, the place of occurrence of the effect shall not be considered
for purpose of venue and territoriality rule. Bigamy committed in Singapore is beyond the
jurisdiction of our court although the offended spouse is residing in the Philippines since the
psychological effect of bigamy to her is not an element thereof.
b. Convention of the law of the sea - Under the Convention on the Law of the Sea, the
flag state of foreign merchant vessel passing through the territorial sea of another state has
jurisdiction over crimes committed therein. However, a coastal state such as the Philippines can
exercise jurisdiction over any crime committed on board such ship in the following cases: (1) if its
consequences extend to the coastal State; (2) if it disturbs the peace of the country or the good
order of the territorial sea; (3) if the ship master or a diplomatic or consular officer of the flag State
requested assistance from the local authorities; or (4) if it is for the suppression of traffic in
narcotic drugs or psychotropic substances. Murder or serious physical injuries committed in a
foreign vessel anchored in a Philippine port against a passenger thereof is within the jurisdiction
of the Philippine court since this crime disturb the peace of the country.
c. Regime of islands - Under the principle of territoriality, the court has also jurisdiction
over crime committed in Kalayaan Islands or Scarboruogh Shoal because the Baseline Law (RA
No. 9522) declares that the Philippines exercise sovereignty and jurisdiction over it.
d. 200-miles exclusive economic zone - The Philippines has no sovereignty over the
200-miles exclusive economic zone. Under the convention of the law of the sea, the Philippines
has sovereign right to fish and to exploit the natural resources in the zone. This sovereign right
is not equivalent to sovereignty. Under the convention, foreign States have the freedom of
navigation and overflight over the exclusive economic zone of the Philippines. Freedom of
navigation and overflight cannot be exercised in a place where a State has sovereignty such as
such its 12-mile territorial water. Under the convention, the Philippines has limited jurisdiction
over crimes committed within the exclusive economic zone such as those involving fiscal, custom,
immigration, health and safety. A State has absolute jurisdiction over crimes committed in a
territory over which it has sovereignty subject only to a few exceptions under international laws.
The recognition of freedom of navigation and overflight and the limited jurisdiction over crimes
committed in the exclusive economic zone militate against the concept of sovereignty.
If a Chinese fishing vessel deliberately bump a Filipino vessel in the West Philippines Sea
covered by the exclusive economic zone of the Philippines, and as a consequence, several Filipino
fishermen died, the Philippines’s jurisdiction over the crime of murder cannot be based on the
theory that the Philippines has sovereignty over the zone. Other principles must be used to justify
its jurisdiction over murder committed within the zone such as flag state rule or passive
personality principle.
2. Extraterritoriality – Under the flag state rule, the Philippines has jurisdiction over
hijacking of PAL airplane in an American territory since it its registered in the Philippines but not
over murder committed in vessel registered in Panama while on high seas although it is owned
by a Filipino. Under the protective principle, the court has jurisdiction over forgery of Philippine
money committed in Taiwan whether by a Filipino or an alien but not over forgery of US dollars
committed therein. Under the extraterritoriality rule, the court has jurisdiction over plunder, direct
bribery and falsification of document by a public officer in a Philippines consular premises
stationed in America but not corruption of public officer and falsification of document committed
by private individual as principal by inducement. Under the universality principle, the court has
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jurisdiction over piracy committed on high seas for being a universal crime but not over murder
qualified by the circumstance of taking advantage of the calamity brought about by piracy on high
seas. The 12-mile territorial water of Taiwan or Sabah may be considered as high seas; hence,
piracy committed therein can be prosecuted in the Philippines (People vs. Lol-Lo and Saraw, G.R.
No. L-17958, February 27, 1922).
3. Concept of culpa - There are two views on whether culpa is a crime or just a mode
of committing a crime.
Under the first view, culpa or reckless imprudence is not a crime in itself; it is simply a
way of committing it (People vs. Faller, G.R. No. L-45964, April 25, 1939; Angeles vs. Jose, G.R.
No. L-6494, November 24, 1954). Following this first view, if a person is killed, property is
damaged and another person suffered slight physical injuries through reckless driving on the part
of the accused, culpa under Article 3 of the Revised Penal Code shall be considered as a mere
mode of committing crimes while the killing, causing damage to property and inflicting slight
physical injuries are the crimes themselves. Hence, the accused committed three crimes, to wit:
homicide through reckless imprudence, damage through property through reckless imprudence,
and slight physical injuries through reckless imprudence. But since a single reckless imprudence
produces these crimes, the accused is liable for a complex crime of homicide and damage to
property through reckless imprudence under Article 48 of the Revised Penal Code. (Lontoc, Jr. v.
Gorgonio, L-37396, April 30, 1979; Reodica vs. CA, G.R. No. 125066, July 8, 1998; Gonzaga v.
People, G.R. No. 195671, January 21, 2015). The third crime will be considered as a separate
crime of slight physical injuries through reckless imprudence. The third crime is a light felony,
which cannot be made a component of a compound crime since under Article 48 speaks of a
single act constituting a grave or less grave felony. (People vs. Turla, G.R. No. L-26388, February
14, 1927)
Under the second view, culpa is not just a mode of committing a crime. It is the crime
itself. (Quizon vs. Hon. Justice of Peace, G.R. No. L-6641, July 28, 1955; People vs. Buan, L25366, March 29, 1968; People vs. Cano, G.R. No. 19660, May 24, 1966). Following this second
view, if a person is killed, property is damaged and another person suffered slight physical injuries
through reckless driving on the part of the accused, the commission of reckless imprudence under
Article 365 of the Revised Penal Code is the crime itself. Hence, the accused shall be held liable
for a single crime of reckless imprudence resulting in homicide, damage through property and
slight physical injuries. Single culpable felony is committed regardless of its consequence. The
consequent death, injuries and damage to property shall only be considered to impose the proper
penalties. This single crime cannot be split into two for purpose of double prosecution because of
the rule on double jeopardy. (Ivler v. Modesto-San Pedro, G.R. No. 172716, November 17, 2010;
Sevilla vs. People, G.R. No. 194390, August 13, 2014).
4. Malum in se - In People vs. Caballo, G.R. No. 198732, June 10, 2013; Malto vs. People,
G.R. No. 164733, September 21, 2007, the Supreme Court considered sexual abuse under RA
No. 7610 as malum prohibitum simply because is it punishable under special law. However,
Patulot vs. People, G.R. No. 235071, January 7, 2019 and People vs. Mabunot, G.R. No. 204659,
September 19, 2016, the Supreme Court considered child abuse under RA No. 7610 as malum in
se. Accordingly, when the acts complained of are inherently immoral, they are deemed mala in
se, even if they are punished by a special law. Physical abuse of a child under RA No. 7610 is
inherently wrong; hence, criminal intent on the part of the offender must be clearly established
with the other elements of the crime.
It is submitted that the correct principle is Patulot case and Mabunot case, and not the
Caballo case and Malto case. The Supreme Court itself in Ysidoro v. People, G.R. No. 192330,
November 14, 2012 explained that a common misconception is that all mala in se crimes are
found in the Revised Penal Code, while all mala prohibita crimes are provided by special penal
laws. The better approach to distinguish between mala in se and mala prohibita crimes is the
determination of the inherent immorality of the penalized act. If the punishable act or omission
is immoral in itself, then it is a crime mala in se; on the contrary, if it is not immoral in itself, but
there is a statute prohibiting its commission by reasons of public policy, then it is mala prohibita.
There may be mala in se crimes under special laws, such as plunder under R.A. No. 7080.
Similarly, there may be mala prohibita crimes defined in the Revised Penal Code, such as
technical malversation.
Malversation is malum in se and a culpable felony, which can be committed by means of
dolo and culpa. Hence, public officers, who commits malversation, can be held liable for violation
of Section 3 (e) of RA No. 3019 for causing damage to the government through evident bad faith
(dolo) or gross inexcusable malversation (culpa). (Pajaro, G.R. Nos. 167860–65, June 17, 2008).
On the other hand, technical malversation is malum prohibitum (Ysidoro v. People, G.R. No.
192330, November 14, 2012), which can be committed without dolo and culpa. Manifest partiality
and gross inexcusable negligence are not elements of technical malversation. Hence, public
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officers, who commits technical malversation, may not be held liable for violation of Section 3 (e)
of RA No. 3019 (Villarosa vs. Hon. Ombudsman, G.R. No. 221418, January 23, 2019) unless
additional circumstance establishes manifest partiality, evident bad faith and gross inexcusable
negligence.
In Villarosa vs. Hon. Ombudsman, supra, using tobacco fund to finance the regular
operations of the municipality, which are not in accordance with the law creating such fund
constitutes technical malversation. However, it was held that the mere act of using government
money to fund a project which is different from what the law states you have to spend it for does
not fall under the definition of manifest partiality nor gross inexcusable negligence. It must always
be remembered that manifest partiality and gross inexcusable negligence are not elements in the
crime of technical malversation.
5. Mistake of fact - Authorities, who manned a checkpoint because of information that
there are armed rebels on board a vehicle, have the duty to validate the information, identify them,
and to make a bloodless arrest unless they were placed in real mortal danger. If they shot the
suspected vehicle, which did not stop after have been flagged down and killed the occupants
therein, who turned out be unarmed civilians, they are liable for multiple homicides. The mistake
of fact principle is not applicable since there is negligence or bad faith on their part (Yapyucu vs.
Sandiganbayan, GR No. 120744-46, June 25, 2012).
6. Tetanus - There had been an interval of 22 days between the date of the stabbing and
the date when victim was rushed to hospital, exhibiting symptoms of tetanus infection. Since
infection is severe, he died the next day. The incubation period of severe tetanus infection is less
than 14 days. Hence, he could not have been infected at the time of the stabbing since that incident
occurred 22 days before the symptoms manifested. The infection was an efficient intervening cause
breaking the connection between the physical injuries and death. Hence, the crime committed is
physical injuries (Villacorta vs. People, G.R. No. 186412, September 7, 2011). If the victim was
infected by tetanus at the time of stabbing, and the infection is the proximate cause of death, the
crime committed is homicide (People vs. Cornel, G.R. No. L-204, May 16, 1947).
7. Offense punishable under special law - Practicing medicine without license is an
offense punishable under special law but not a felony within the meaning of Article 4 of RPC.
Hence, a quack doctor, who killed his patient while treating him, is only liable for reckless
imprudence resulting in homicide (People vs. Carmen, G.R. No. 137268, March 26, 2001).
If the victim accidentally killed is the owner, driver or occupant of the carnapped motor
vehicle, the crime committed is qualified carnapping or carnapping in the aggravated form under
Section 3 of RA No. 10883. To prove the special complex crime of carnapping with homicide, there
must be proof not only of the essential elements of carnapping, but also that it was the original
criminal design of the culprit and the killing of owner, driver or occupant of the vehicle was
perpetrated in the course of the commission of the carnapping (People vs. Mallari, G.R. No.
179041, April 1, 2013).
If the victim accidentally killed is not the owner, driver or occupant of the carnapped motor
vehicle, the crimes committed are simple carnapping and homicide. The concept of carnapping is
the same as that of theft and robbery (People vs. Sia, G.R. No. 137457, Nov. 21, 2001). Although
not punishable under RPC, it can be treated as a felony within the meaning of Article 4 of RPC
(See: Dimat vs. People, G.R. No. 181184, January 25, 2012). Hence, the accused is liable for
homicide, which is the direct and natural consequence of simple carnapping.
8. Sense of danger - If a person in committing threat, murder, rape or robbery creates in
the mind of the victim an immediate sense of danger which causes such person to try to escape,
and in so doing he injures himself, the person who creates such a state of mind is responsible for
the resulting injuries or death (US vs. Valdez, G.R. No. 16486, March 22, 1921; People vs. Toling,
G.R. No. L-27097, January 17, 1975; People vs. Castromero, G.R. No. 118992, October 9, 1997;
People vs. Arpa, G.R. No. L-26789, April 25, 1969).
9. Aberratio ictus – 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, single act of throwing a grenade killing one and injuring another
constitutes a complex crime of murder and attempted murder. (People v. Julio Guillen, G.R. No.
L-1477, January 18, 1950) However, the accused is liable for separate crimes despite the
application of the aberratio ictus rule, and not a compound crime in the following cases: a. If the
bullet that killed that target victim is different from the bullet that killed the third person, who
was hit by reason of aberratio ictus (People v. Flora, G.R. No. 125909, June 23, 2000; People v.
Adriano, G.R. No. 205228, July 15, 2015); or 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); or c. If the components of a compound
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crime are alleged in two different information. (People v. Umawid, G.R. No. 208719, June 9, 2014);
or d. 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)
In Patulot vs. People, G.R. No. 235071, January 7, 2019, accused consciously poured hot
cooking oil from a casserole on CCC, consequently injuring AAA (3 years old) and BBB (2 months
old) burning their skins and faces. Accused is liable for child abuse involving 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 the Revised Penal Code, accused is liable for the wrongful act done
(child abuse against AAA and BBB) although it differs from the wrongful act intended (physical
injuries on CCC).
10. Praeter intentionem - In Wacoy v. People, G.R. No. 213792, June 22, 2015, accused
merely kicked and punched the victim on the stomach, which shows that their intention is merely
to maltreat, and not to end his life. The concept of intent to kill as an element of homicide should
not be confused with that of lack of intent to kill, on the basis of which the mitigating circumstance
of praeter intentionem shall be appreciated. Since the victim died as a consequence of a felonious
act of violence employed by the accused, intent to kill as an element of homicide is conclusively
presumed. Even if there is no intent to kill, the crime is still homicide because with respect to
crimes of personal violence, the penal law looks particularly to the material results following the
unlawful act and holds the aggressor responsible for all the consequences thereof. However, the
mitigating circumstance of praeter intentionem shall be appreciated since there is no intent to kill.
Under Article 49 of the Revised Penal Code, if the penalty for the intended crime is
different from that of the committed crime, the court shall impose the penalty for the intended
crime or crime actually committed, whichever is lesser, to be applied in its maximum period.
Article 49 applies only to error in personae. If the crime committed is parricide but the crime
intended is homicide, the penalty for the lesser crime of homicide, which is reclusion temporal,
shall be applied in its maximum period. Article 49 is not applicable if the penalty for the intended
crime is not different from that of the committed crime. If the crime committed is parricide, but
the crime intended is murder, Article 49, which requires the application of penalty in its maximum
period, is not applicable because both crimes are punished by reclusion perpetua to death.
Article 49 is neither applicable to aberratio ictus (People v. Guillen, supra) nor to praeter
intentionem. (Wacoy v. People, G.R. No. 213792, June 22, 2015, ) In aberratio ictus, Article 48 may
apply where crimes committed against the intended victim and third person, who was hit by
reason of aberratio ictus, were produced by a single act. Praeter intentionem may be appreciated
as mitigating circumstance of lack of intent to commit so grave a wrong than that committed
under Article 13.
11. Impossible crime - The crime committed is impossible crime if the offense sought to
be committed is factually or legally impossible. Killing a dead person is impossible crime because
of legal impossibility. Putting the hand inside an empty pocket with intention to steal a wallet is
impossible crime because of factual impossibility (Intod vs. Court of Appeals, G.R. No. 103119,
October 21, 1992). 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
impossible crime because of the collective responsibility rule. The liability of the accused for
murder is based on the act of his co-conspirator in hacking and killing the victim, which by fiction
of the law shall be treated as the act of both them. (People vs. Callao, G.R. No. 228945, March 14,
2018)
Kidnapping for ransom consummates at the precise moment when the victim was
abducted. Receiving ransom payment is not an element of this crime. What is important is that
the victim was kidnapped for purpose of ransom. Since the crime is already consummated, there
is no basis to say that it is impossible to commit this crime (People vs. Tan, G.R. No. 95322, March
1, 1993). Moreover, kidnapping is a crime against liberty and not against person or property.
Firing a gun at the unoccupied bedroom with intention to kill a victim constitutes impossible crime
because it is factually impossible to kill a victim, who was not in the bedroom (Intod vs. Court of
Appeals, G.R. No. 103119, October 21, 1992). But throwing grenade at the unoccupied bedroom,
where the victim is supposed to be sleeping, constitutes arson if the bedroom was burned as a
consequence.
a. Gender crime - Gender is an element of all crimes against chastity except acts of
lasciviousness. In seduction and consented acts of lasciviousness, and abduction, the offender
must be a man, while the victim must be a woman. The offender in adultery must be a married
woman, while in concubinage a married man. If the element of gender is not present in a crime
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against chastity, it is impossible to commit this crime (e.g. it is impossible to commit abduction
against a person, who is gay). Despite the impossibility of its commission, the accused is not liable
for impossible crime. To be held liable for impossible crime, the act which is impossible to commit
must constitutes crime against person or property. However, abduction is a crime against
chastity. But the accused may be held liable for illegal detention.
A person, who has sexual intercourse with a woman not knowing that she was already
dead, is liable for impossible crime since rape is now a crime against person. However, if he is
aware that the woman is already dead, he is not liable for impossible crime since criminal intent
or propensity to rape, which is the basis of penalizing impossible crime, is wanting.
If the gender element in rape through sexual intercourse is not present, the offender is not
liable for impossible crime. Although it is impossible to commit rape through sexual intercourse
where the victim is a gay, such acts constitute acts of lasciviousness.
b. Unfunded check - If the check is unfunded, stealing the check and presenting it for
payment with the bank constitute impossible crime. It is factually impossible to accomplish the
crime of qualified theft since the check is unfunded (Jacinto vs. People, G.R. No. 162540, July
13, 2009). If the check is funded, stealing the check and presenting it for payment with the bank
is not impossible crime. Even if the accused failed to encash the same due to external cause such
as apprehension by police or stop payment, he will be held liable for consummated theft. In theft,
taking property with intent to gain consummates the crime. Actual gain is not an element thereof.
Thus, failure to gain will not prevent the consummation of the crime (See: People vs. Seranilla,
G.R. No. L-54090, May 9, 1988).
12. Battered woman syndrome - The essence of “Battered Woman Syndrome” as a
defense is that battered woman, who suffers from physical and psychological or emotional
distress, is acting under an irresistible impulse to defend herself although at the time of
commission of the crime the batterer had not yet committed unlawful aggression. That is why
“Battered Woman Syndrome” is a defense notwithstanding the absence of any of the elements for
justifying circumstances of self-defense such as unlawful aggression (Section 26 of RA No. 9262).
This Syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms
found in women living in battering relationships as a result of cumulative abuse (Section 3).
The three phases of the Battered Woman Syndrome are: (1) the tension-building phase;
(2) the acute battering incident; and (3) the tranquil, loving or non-violent phase (People vs.
Genosa, G.R. No. 135981, January 15, 2004). The basis of the irresistible impulse to make a
defense against the batterer is the woman’s experiencing two battering episodes.
The elements of Battered Woman Syndrome as a defense are as follows: (1) the woman is
subjected to cumulative abuse by the victim, with whom she has marital, sexual or dating
relationship; and (2) the cumulative abuse or battery is the act of inflicting physical harm resulting
to physical and psychological or emotional distress. Since the abuse must be cumulative, there
must be at least two episodes involving the infliction of physical harm. If the first episode is
infliction of physical harm and the second episode is verbal abuse, the accused cannot avail
Battered Woman Syndrome as a defense.
13. Insanity - The defense of insanity is in the nature of a confession or avoidance because
an accused invoking it admits to have committed the crime but claims that he should not be
criminally liable therefor because of insanity, which is an exempting circumstance. Consequently,
the accused is tried on the issue of sanity alone, and if found to be sane, a judgment of conviction
is rendered without any trial on the issue of guilt. An accused invoking the exempting
circumstance of insanity bears the burden of proving it with clear and convincing
evidence because every person is presumed sane. For the defense of insanity to prosper, it must
be proven that the accused was completely deprived of intelligence, which must relate to the time
immediately preceding or simultaneous to the commission of the offense with which he is charged.
(People vs. Mirana, G.R. No. 219113, April 25, 2018)
14. Imbecility and minority – Mental retardation includes (a) idiot, whose mental age is
two-year old; (b) imbecile, whose mental age is seven-year old; (c) moron or feebleminded, whose
mental age is twelve-year old and (d) borderline intelligence. (People vs. Butiong, G.R. No. 168932,
October 19, 2011; People vs. Bayrante, G.R. No. 188978, June 13, 2012; People vs. Gilles, G.R.
No. 229860, March 21, 2018)
For purpose of statutory rape, there is no difference between actual age and mental age.
Having sexual intercourse with the offended party, who is under 12 years of age, is statutory rape
under of Article 266-A (d). The word “age” in this provision includes chronological age and mental
age. Hence, having sexual intercourse with idiot, imbecile, or feebleminded is statutory rape under
of Article 266-A (d) (People vs. Daniega, G.R. No. 212201, June 28, 2017; People vs. Labordo, G.R.
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No. 239033, February 13, 2019). However, having sexual intercourse with a person with
borderline intelligence is not statutory rape because his mental age is above 12 years.
Having sexual intercourse with the offended party, who is deprived of reason, is rape under
Article 266-A (b) of the Revised Penal Code. Mental retardation is within the contemplation of
deprivation of reason. Hence, having sexual intercourse with idiot, imbecile, feebleminded or
person with borderline intelligence is rape of a person deprived of reason under Article 266-A (b)
(People vs. Butiong, G.R. No. 168932, October 19, 2011; People vs. Bayrante, G.R. No. 188978,
June 13, 2012).
If the information alleged force, threat, or intimidation without averment of any mental
disability on the part of the victim, the accused can still be convicted provided that sexual
congress and mental incapacity, i.e. the incapacity to give consent, are proven by clear and
convincing evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014; People vs. Gilles,
G.R. No. 229860, March 21, 2018). Having sexual intercourse with a mentally retarded person is
equivalent to having sexual intercourse with a person through intimidation. If the Information
alleged intimidation as a mode of raping the victim, but the evidence merely proves her mental
retardation, the accused can be convicted of rape through intimidation. (People v. Balatazo, G.R.
No. 118027, January 29, 2004)
Assuming that accused and victim had a romantic relation, carnal knowledge with victim,
even if consensual, would amount to rape due to her mental disability. Knowledge victim's mental
retardation is not an element for the charge of rape. However, knowledge of her mental condition
is important for purposes of qualifying the charge of rape. (People vs. Martinez, G.R. No. 226394,
March 7, 2018)
There are two victims in rape with mentally disability, to wit: (1) persons deprived of
reason; and (2) demented person. The concept of the terms “deprived of reason” is comprehensive
since it includes demented or insane person and mentally retarded person. On the other hand,
the term "demented" is confined to insane person. If the victim is insane, the accused can be
charged with rape of person deprived of reason or demented person. If the victim is mentally
retarded, the accused should be charged with rape of a person deprived of reason (People vs.
Eleuterio, G.R. No. 219957, April 04, 2018) or statutory rape of a person under 12 years of age
(People v. Daniega, G.R. No. 212201, June 28, 2017). Describing a mentally retarded person in
the information as demented is improper. However, describing the victim in the information as a
"mentally defective woman” (People vs. Martinez, G.R. No. 226394, March 7, 2018), or “a
demented person whose mental age is below 7 years old” (People v. Caoile, G.R. No. 203041, June
5, 2013) is sufficient compliance with the constitutional mandate that an accused be informed of
the nature of the charge against him.
If the Information alleged the victim of rape is demented, but the evidence merely proves
her mental retardation, the accused cannot be convicted of rape of a demented person unless the
accused failed to raise the mistake in the Information as an objection (People v. Ventura, Sr., G.R.
No. 205230, March 12, 2014; People vs. Eleuterio, G.R. No. 219957, April 04, 2018)
Under Section 5 (b) of RA No 7610, when the child subjected to sexual abuse is under 12
years of age, the perpetrators shall be prosecuted for rape and acts of lasciviousness under RPC.
For purpose of Section 5 (b), there is no difference between actual age and mental age. Hence, the
victim whose actual age is 12 years old but her mental age is 9 years old, is considered as a victim
under 12 year of age within the contemplation of Section 5 (b) (People vs. Pusing, G.R. No. 208009,
July 11, 2016),
In exempting circumstance, there is a difference between actual age and mental age. In
exempting circumstance of imbecility, what is important is the mental age of the accused. An
idiot, whose mental age is 2 years, and imbecile, whose mental age is 7 years old (People vs.
Butiong, G.R. No. 168932, October 19, 2011, Bersamin) are exempt from criminal liability. A
feebleminded, whose mental age is 12 years old, is not exempt from criminal liability since he is
not an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to
mitigating circumstance of mental illness (People vs. Formigones, G.R. No. L-3246, November 29,
1950). In exempting circumstance of minority under Section 6 of RA No. 9344, what is important
is the chronological or actual age of the accused. If the actual age of the accused is 18 years old
and mental age is 9 years old, the exempting circumstance of minority and imbecility shall not be
appreciated (People vs. Roxas, G.R. No. 200793, June 04, 2014).
15. Child in conflict with the law -The rights and privileges of a child in conflict with
the law are as follows:
1. If the accused is 15 years of age or below, minority is an exempting circumstance
(Section 6 of RA No. 9344). Lack of discernment is conclusively presumed. If the child is above 15
years of age, minority is an exempting circumstance if he acted without discernment, or privilege
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mitigating circumstance if he acted with discernment. This privilege mitigating circumstance shall
be appreciated even if minority was not proved during the trial and that his birth certificate was
belatedly presented on appeal (People vs. Agacer, G.R. No. 177751, January 7, 2013) and even if
the penalty is reclusion perpetua to death (People vs. Ancajas, G.R. No. 199270, October 21,
2015).
2. If the accused is 15 years of age or below but above 12 years, shall be considered as a
neglected child. Neglected child shall be mandatorily placed in a youth care facility or Bahay Pagasa in the following instances: (a) If the child commits serious crimes such as parricide, murder,
infanticide, rape, kidnapping and serious illegal detention with homicide or rape, robbery with
homicide or rape, destructive arson, or carnapping where the driver or occupant is killed or raped
or offenses involving dangerous drugs punishable by more than 12 years of imprisonment; and
(b) In case of repetition of offenses and the child was previously subjected to a intervention
program and his best interest requires involuntarily commitment.
In case of commission of serious crime, a petition for involuntarily commitment shall be
filed by social worker in court. In case of repetition of offenses, his parents or guardians shall
execute a written authorization for the voluntary commitment. However, if the child has no
parents or guardians or if they refuse or fail to execute such authorization, the proper petition for
involuntary commitment shall be immediately filed social worker in court; but the child may be
subjected to intensive intervention program supervised by the local social officer instead of
involuntary commitment (Section 20-A and 20-B of RA 9344 as amended by RA 10630).
3. If the child is found guilty (the exempting circumstance of minority was not considered),
the court shall place him under suspended sentence, without need of application instead of
pronouncing judgment of conviction (Section 38 of RA 9344). The law makes no distinction as to
the nature of offense by the child. The Senate deliberation discloses that the suspension is
applicable to heinous crime (People vs. Jacinto, G.R. No. 182239, March 16, 2011; People vs.
Ancajas, G.R. No. 199270, October 21, 2015).
Sec. 38 of R.A. No. 9344 on suspension of service of sentence of a minor does not
distinguish between a minor who has been convicted of a capital offense and another who has
been convicted of a lesser offense. Hence, the Court should also not distinguish and should apply
the automatic suspension of sentence to a child in conflict with the law who has been found guilty
of a heinous crime. Moreover, the legislative intent, to apply to heinous crimes the automatic
suspension of sentence of a child in conflict with the law can be gleaned from the Senate
deliberation. In fact, the Court En Banc promulgated on November 24, 2009, the Revised Rule on
Children in Conflict with the Law, which echoed such legislative intent. Although suspension of
sentence still applies even if the child in conflict with the law is already 18 years of age or more
at the time the judgment' of conviction was rendered, however, such suspension is only until the
minor reaches the maximum age of 21. Appellant is now 34 years old, thus, the service of his
sentence will not anymore be suspended. However, he shall be given the benefit of being confined
in an agricultural camp or any other training facility. (People vs. Rupisan, G.R. No. 226494,
February 14, 2018)
An accused, who is under 18 years of age at the time of the commission of the crime, is a
child in conflict with the law. He will not be deprived of privileges under the law even though he
reaches age of majority at time of rendition of judgment. Exception: While Section 38 of RA 9344
provides suspension of sentence can still be applied even if the child is already 18 years of age at
the time of conviction. However, Section 40 limits the suspension of sentence until the child
reaches the age of 21 (People vs. Gambao, GR No. 172707, October 01, 2013; People vs. Ancajas,
G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No. 176102, November 26, 2014).
4. If the accused is an adult, application for probation must be filed within the period of
perfecting an appeal (Section 4 of PD No. 968 or Probation Law). However, the accused is a child
in conflict with the law, application for probation may be filed at any time (Section 42 of RA No.
9344). In sum, it can be filed even beyond the period of perfecting an appeal or even during the
pendency of an appeal.
Under Section 9 of PD 968, one, who is sentenced to suffer a penalty (or maximum
indeterminate penalty) of more than 6 years, is not qualified to apply for probation. However,
under Section 70 of RA No. 9165, a first time minor offender can apply for probation for the crime
of possession or use of dangerous drug even if the penalty is higher than 6 years of imprisonment.
But Section 70 of RA 9165 is not applicable sale of dangerous drugs. Section 24 of RA No. 9165
disqualifies drug traffickers and pushers for applying for probations although the accused is a
minor. The law considers the users and possessors of illegal drugs as victims while the drug
traffickers and pushers as predators (Padua vs. People, G.R. No. 168546, July 23, 2008).
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5. The child in conflict with the law may, after conviction and upon order of the court, be
made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural
camp and other training facilities in accordance with Section 51 of RA No. 9344 (People vs. Arpon,
G.R. No. 183563, December 14, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015;
Hubilla vs. People, G.R. No. 176102, November 26, 2014).
6. A convict is entitled to a full or 4/5 credit of his preventive imprisonment (Article 29 of
RPC). However, if the convict is a child in conflict with the law, he shall be credited in the services
of his sentence the full time spent in actual commitment and detention (Section 41, RA 9344;
Atizado vs. People, G.R. No. 173822, October 13, 2010).
16. Status offense – Status offenses such as curfew violation refers to offenses which
discriminate only against a child, while an adult does not suffer any penalty for committing similar
acts (Section 3 of RA No. 9344). In sum, a status offense is a crime where minority of the offender
is an element. A child shall not be punished for committing a status offense (Section 57). Under
Section 57-A, local ordinances on status offenses shall be for the protection of children. For
committing status offense, children recorded as a child at risk shall be brought to their residence
or to any barangay official at the barangay hall to be released to the custody of their parents
instead of being penalized.
17. Exempting circumstance of relationship - The absolutory cause of relationship
under Article 332 of RPC applies to theft, swindling and malicious mischief. It does not apply to
complex crime of theft through falsification or complex crime of estafa through falsification. It
includes step-relationship and in-laws-relationship. There are two views on whether death of his
wife dissolves the relationship by affinity of the husband with his mother-in-law for purpose of
absolutory cause. The first holds that relationship by affinity terminates after the death of the
deceased spouse, while the second maintains that relationship continues. The principle of pro reo
calls for the adoption of the continuing affinity view because it is more favorable to the accused
(Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). The term “spouses”
in Article 332 embraces common-law spouses. The basis of this ruling is the rule on co-ownership
over properties by common-law spouses (People vs. Constantino, No. 01897-CR, September 6,
1963, 60 O.G. 3603).
18. Aggravating circumstances - The aggravating circumstance of dwelling should be
taken into account. Although the triggerman fired the shot from outside the house, his victim
was inside. For this circumstance to be considered it is not necessary that the accused should
have actually entered the dwelling of the victim to commit the offense; it is enough that the victim
was attacked inside his own house, although the assailant may have devised means to perpetrate
the assault from without (People vs. Tirso, G.R. No. 214757, March 29, 2017).
In robbery with violence and intimidation against persons, dwelling is aggravating
because in this class of robbery, the crime may be committed without the necessity of trespassing
the sanctity of the offended party's house. It is considered an aggravating circumstance primarily
because of the sanctity of privacy that the law accords to the human abode (People vs. Bringcula,
G.R. No. 226400, January 24, 2018).
19. Exploitation of minor – The special aggravating circumstance of exploitation of minor
under RA No. 9344is present if the accused makes use, takes advantage of, or profits from the
use of children, or abuses his authority over the child or takes advantage of the vulnerabilities of
the child with abuse of confidence or induce, threaten or instigate the commission of the crime.
The concept of exploitation of children is comprehensive enough to cover the ordinary aggravating
circumstance of with the aid of minor under 15 years of age under Article 14 of the Revised Penal
Code.
20. Seniority - Under RA No. 7432 as amended RA No. 9994, a senior
citizen or elderly refers to any resident citizen of the Philippines at least sixty (60) years old. Thus,
on the 60th birthday of resident citizen, he becomes a senior citizen under the law. However, the
concept of seniority in criminal law is different from that under RA No. 7432. Under Article 13 (2)
of the Revised Penal Code, the mitigating circumstance of seniority is present if the accused is
over 70 years of age. Thus, on his 70th birthday, an offender is not yet a senior citizen; he becomes
a senior citizen after his 70th birthday. However, it must be noted that seniority as a mitigating
circumstance can only be considered if the offender is over 70 years of age at the time of the
commission of the crime and not at the time of the promulgation of the decision (People vs. Reyes,
G.R. No. 177105-06, August 12, 2010).
There is a view that a person, who is over 70 years of age, is immune from criminal
liability. This view has no basis under the law.
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There are two kinds of exempting circumstance, to wit: general exempting circumstances
and specific exempting circumstances. General exempting circumstance can be appreciated in
any crime even if it punishable under special law in favor of any offender, whether principal,
accomplice or accessory. General exempting circumstances are those listed in Article 12 of the
Revised Penal Code such insanity and Section 6 of RA No. 9344 on minority. Specific exempting
can be appreciated in a specific crime in favor of specific offender. The following are specific
exempting circumstances: relationship in favor of accessory by destroying or concealing the body,
instrument or effects of the crime or by helping the principal to escape under certain conditions;
or (Article 20) in theft, malicious mischief or swindling; (Article 332) exceptional circumstance in
favor of one who inflicted slight or less serious physical injuries upon his spouse or daughter;
(Article 247) minority in prostitution, sniffing rugby, mendicancy, or status offense e.g. parental
disobedience, curfew violation or truancy; and (Sections 57 and 58 of RA No. 9344) being a
trafficked victim in prostitution, working without permit, rebellion or any other crime committed
in relation to trafficking in person or in obedience to the order made by the trafficker in relation
thereto (Section 17 of RA No 9208).
There is nothing in the Revised Penal Code or in any other laws that exempt a senior
citizen from criminal liability. A senior citizen is entitled to privileges under the law, custom and
tradition. However, committing a crime is not a privilege to which a senior citizen is entitled.
However, According to Justice Florenz Regalado, if the accused is suffering from senility
amounting to insanity at the time of the commission of the crime, he is exempt from criminal
liability due to the circumstance of insanity and not seniority. However, Article 13 (2) of the Code,
seniority is only a mitigating circumstance. In sum, the penalty imposable to a senior citizen shall
be reduced.
There is a view that a prisoner, who is over 70 years of age, should be released through a
pardon. This view has no constitutional basis.
Under the Constitution, the President has the absolute authority to pardon or not the
pardon an offender subject only to three limitations, to wit: (1) pardon must be made after
conviction of the accused by final judgement; (2) impeachable offense cannot be pardoned; and
(3) election offense without favorable recommendation of the Comelec cannot be pardoned.
These constitutional limitations are exclusive. In Risos-vidal vs. Lim, G.R. No. 206666,
January 21, 2015, the Supreme Court, En Banc, said that the pardoning power is discretionary
in the President and may not be interfered with by Congress or the Court, except only when it
exceeds the limits provided for by the Constitution
Under Article 160 of the Revised Penal Code, a quasi-recidivist shall be pardoned at the
age of 70 years provided that he is not a habitual criminal and has already served out his original
sentence, or completed it after reaching said age. It should be noted that the pardonable crime in
Article 160 pertains to that committed while he was serving his sentence in prison as a convicted
prisoner, and not to the crime covered by his original sentence committed by him before he was
detained as a convicted prisoner.
However, Article 160 of the Code is an interference to the absolute and discretionary
pardoning power of the President, which is a violation of the non-interference principle in the case
of Risos-vidal vs. Lim, supra. According to former CA Justice Albert Mariano, the second
paragraph of Article 160 on pardon is unconstitutional.
There is a view that the sentence of a convict, who is over 70 years of age, should be
suspended. This view has no basis under the law.
Under Article 13 (b) of the Revised Penal Code, the offender is under 18 years of age or
over 70 years; in the case of the minor, he shall be proceeded against in accordance with the
provisions of Article 80. Article 80 of the Revised Penal Code, which is now replaced by RA No.
9344, is a provision on suspension of sentence of minor delinquents. In sum, the suspension of
sentence rule is available only to a child in conflict with the law. There is no rule on suspension
of sentence by reason of seniority.
There is a view that an accused, who is over 70 years of age, is entitled to post bail even
though the crime is non-bailable for being punishable by reclusion perpetua because of the case
of Enrile. This view has no jurisprudential basis. In Juan Ponce Enrile vs. Sandiganbayan, G.R.
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No. 213847, August 18, 2015, the Supreme Court allowed Enrile to post bail for a non-bailable
crime of plunder punishable by reclusion perpetua because his social and political standing and
his having immediately surrendered to the authorities upon his being charged in court indicate
that the risk of his flight or escape from this jurisdiction is highly unlikely, and due to his
currently fragile state of health. In sum, the Supreme Considered three circumstances in allowing
Enrile to post bail, to wit: (1) his social and political standing; (2) voluntary surrender; and (3) his
fragile health.
Since under the Constitution, one can only post bail for a crime punishable by reclusion
perpetua if the evidence of guilt is not strong, it is submitted that to apply the Enrile principle,
the circumstances of a case must be similar to those in the case of Enrile. The fact that an accused
is over 70 year of age is not enough to allow him to post bail for a crime punishable by reclusion
perpetua unless the following circumstances concurred: extraordinary social and political
standing, voluntary surrender and fragile health.
21. Partial restitution - The payment, indemnification, or reimbursement of, or
compromise on the amounts or funds malversed or misappropriated, after the commission of the
crime, does not extinguish the accused's criminal liability or relieve the accused from the penalty
prescribed by the law. At best, such acts of reimbursement may only affect the offender's civil
liability, and may be credited in his favor as a mitigating circumstance analogous to voluntary
surrender. Accused enjoys the mitigating circumstance of voluntary surrender, due to his partial
restitution of the amount malversed (Valenzuela vs. People, G.R. No. 205693, February 14, 2018)
22. Conspiracy - B.P. Blg. 22 does not expressly proscribe the supplementary application
of the provisions RPC including the rule on conspiracy. Hence, such rule may be applied
supplementarily. Thus, a non-issuer of a bum check can be held liable for violation of BP Blg. 22
on the basis of conspiracy. (Ladonga vs. People, G.R. No. 141066, February 17, 2005). The
principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as mother-in-law),
who has no marital, sexual or dating relationship with the victim, can be held liable for violence
against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852, September 30, 2008)
If there is conspiracy, the act of the public officer in violating RA No. 3019 is imputable to
the private individual although there are not similarly situated in relation to the object of the
crime. Moreover, Section 9 of RA No. 3019 provides penalty for public officer or private person for
crime under Section 3. Hence, a private individual can be prosecuted for violation of RA No. 3019
(Go vs. The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public
officer, with whom the private individual allegedly conspired, died, the latter can still be
prosecuted for violation of RA No. 3019. Death extinguishes the criminal liability but not the
crime. Hence, if there is proof of the crime and conspiracy between the dead public officer and
private individual, the latter can still be convicted of violation of RA No. 3019 (People vs. Go, GR
NO. 168539, March 25, 2014). However, if the public officer with whom the private individual
allegedly conspired is acquitted, the latter should also be acquitted (Marcos vs. Sandiganbayan,
G.R. No. 126995, October 6, 1998).
While the primary offender in violation of RA No. 3019 and plunder are public officers,
private individuals may also be held liable for the same if they are found to have conspired with
said officers in committing the same. This proceeds from the fundamental principle that in cases
of conspiracy, the act of one is the act of all. In this case, Janet Napoles engaged in the illegal
hemorrhaging of Senator Enrile's PDAF. Thus, they are rightfully charged as a co-conspirator for
corruption and plunder. (Napoles vs. Carpio-Morales, G.R. Nos. 213542-43, March 15, 2016)
Mayor, treasurer and planning coordinator approved the overpayments in favor of a private
individual for the construction of public market. The public officers caused undue injury to the
government through manifest partiality and evident bad faith in violation of Section 3 (e) of RA
No. 3019. The private individual, who was overpaid, is also liable on the basis of conspiracy and
Go vs. Fifth Division of the Sandiganbayan (Santillano vs. People, G.R. Nos. 175045-46, March
03, 2010; Uyboco vs. People, G.R. No. 211703, December 10, 2014).
23. Fencing – Fencing is a malum prohibitum, and PD 1612 creates a prima
facie presumption of Fencing from evidence of possession by the accused of any good, article,
item, object or anything of value, which has been the subject of robbery or theft; and prescribes
a higher penalty based on the value of the property. (Cahulugan vs. People, G.R. No. 225695,
March 21, 2018)
In fencing, the property, which the accused possesses with intent to gain, must be derived from
the proceeds of theft or robbery (Ong vs. People, GR No. 190475, April 10, 2013). The concept of
carnapping is the same as that of theft or robbery (People vs. Sia, G.R. No. 137457, November 21,
2001). Thus, carnapping can be considered as within the contemplation of the word “theft” or
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“robbery” in PD No. 1612 (Dimat vs. People, G.R. No. 181184, January 25, 2012). If the property
is derived from the proceeds of malversation or estafa, fencing is not committed. But the accused
can be held liable as an accessory if he profited or assisted other to profit from this
misappropriated property.
Actual knowledge that the property is stolen is not required. Fencing is committed is the
accused should have known that the property is stolen taken into consideration the attending
circumstances such as (1) the price of the property is so cheap; (2) expensive jewelry is being
offered for sale at midnight in a street; (3) accused knew that the car he bought was not properly
documented (Dimat vs. People, supra); or (4) new tires are being peddled in the streets by an
unknown seller (Ong vs. People, supra). Furthermore, mere possession of stolen property shall be
prima facie evidence of fencing (Section 6 of PD No. 1612).
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 are stolen.
He was convicted of fencing. (Cahulugan vs. People, G.R. No. 225695, March 21, 2018)
If the information alleged that the accused “knows” that the property is stolen, he cannot
be convicted of fencing on the ground that he “should have known” that the same was derived
from the proceeds of theft because of his constitutional right to be informed (Lim vs. People, G.R.
No. 211977, October 12, 2016).
In Lim vs. People, G.R. No. 211977, October 12, 2016, the clearance stated in Section 6
of PD No. 1612 is only required if several conditions, are met: first, that the person, store,
establishment or entity is in the business of buying and selling of any good, articles item object,
or anything of value; second, that such thing of value was obtained from an unlicensed dealer or
supplier thereof; and third, that such thing of value is to be offered for sale to the public. In the
present case, the first and third requisites were not met. Nowhere was it established that
petitioner was engaged in the business of buy and sell. Neither was the prosecution able to
establish that petitioner intended to sell or was actually selling the subject grader to the public.
RA No. 10951 amended RPC by prescribing lesser penalties for theft through the
adjustment of the values of the properties stolen on which the penalties for theft is based taking
into consideration the value of the money in 2017. However, RA No. 10951 failed to adjust the
penalties for fencing. This development would then result in instances where a fence, which is
theoretically a mere accessory to the crime of robbery or theft, will be punished more severely
than the principal of such latter crimes. This incongruence in penalties therefore, impels an
adjustment of penalties. Pursuant to Article 5 of RPC, the SC furnished a copy of the decision on
fencing the President through DOJ, the Senate President, and the House Speaker to alert them
on the excessive penalties for fencing.
24. Obstruction of justice – Obstruction of justice can only be committed by a person
other than the one being investigated or tried in a criminal proceeding. Although this is not
expressly required in PD No. 1829 to make one liable for obstruction of justice, a principal himself
cannot be held liable for obstruction of justice (Angeles vs. Gaite, G.R No. 165276, November 25,
2009).
The criminal actor, who threw the body of murdered victim into the river to destroy the
corpus delicti, is liable for murder qualified by the circumstance of employment of means to afford
impunity. The one who assisted in in throwing the body is liable as an accessory to murder for
destroying the body of the crime to prevent its discovery (People vs. Devaras, G.R. Nos. 10093839, December 15, 1993)or a principal in the crime of obstruction of justice for destroying it to
impair its availability as evidence in a criminal proceeding.
The accused cannot be prosecuted both as an accessory for murder and as principal for
obstruction of justice. The penalty prescribed for obstruction of justice under PD No. 1829 is
prision correccional in its maximum period unless other law prescribed a higher penalty. Thus,
the offender may be prosecuted for murder as accessory with the penalty of prision mayor or for
obstruction of justice as principal also with the penalty of prision mayor, since the penalty under
RPC is higher than that prescribed under PD No. 1829. The intention of the law in prescribing a
fixed penalty or that provided by other law such as RPC, whichever is higher, is not to prosecute
the offender for obstruction of justice and for other crime arising from the same act such as
destroying the body of the crime.
After the discovery of illegal possession of lumber, the accused unlawfully took the truck
used to commit the crime from the authorities. He is not liable as an accessory since he did not
conceal the instrument of the crime for the purpose of preventing the discovery thereof. Crime was
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already discovered when the concealment was made. However, he is liable for obstruction of
justice for concealing the truck to impair its availability as evidence in the criminal proceeding for
illegal possession of lumber (Padiernos vs. People, G.R. No. 181111, August 17, 2015).
To be held liable as an accessory, the person harbored, concealed, or assisted to escape
must be principal of the crime and the crime committed must be treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or other crime where act was committed with abuse
of public function or the principal is a habitual delinquent. To be held liable as a principal in
obstruction of justice, the one harbored, concealed, or assisted to escape is any person (such as
principal or accomplice) and the crime committed is “any offense under existing law.”
The exempting circumstance of relationship under Article 20 of RPC can be appreciated
in favor of an accessory to a felony but not in favor of an accused in the crime of obstruction of
justice since he is being prosecuted as principal and not as an accessory.
Light felony is punishable except when the accused is merely an accessory (Article 16 of
RPC) or when it is at the attempted or frustrated stage unless it is a crime against property or
person (Article 7). However, obstruction of justice can be committed even though the crime under
investigation is a light felony.
An accused can be convicted as an accessory to a felony although the principal was not
convicted because the latter was at large, unidentified or dead (Vino vs. People, G.R. No. 84163,
October 19, 1989). The corresponding responsibilities of the principal, accomplice, and accessory
are distinct from each other. As long as the commission of the offense can be duly established in
evidence, the determination of the liability of the accomplice or accessory can proceed
independently of that of the principal (People vs. Bayabos, G.R. No. 171222, February 18, 2015).
25. Special complex crime –Raping the victim or inserting instrument in her anal orifice
after treacherously inflicting mortal wounds is not a special complex crime of rape with homicide
because the original design of the victim is kill and not to rape the victim. The crime committed
is murder qualified by treachery and rape shall be regarded either as ignominy or cruelty (People
vs. Laspardas, G.R. No. L-46146, Oct. 23, 1979) or sexual assault shall be treated
as cruelty (People vs. Bernabe, G.R. No. 185726, October 16, 2009).
a. Special rule for kidnapping with homicide - Where the person kidnapped is killed in
the course of the detention, regardless of whether the killing was purposely sought or was merely
an afterthought, the accused is liable for a special complex crime of kidnapping with homicide
(People vs. Mercado, G.R. No. 116239, November 29, 2000; People vs. Ramos, G.R. No.
118570, October 12, 1998; People vs. Larranaga, 138874-75, February 3, 2004; People vs.
Montanir, GR No. 187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949, July 23, 2014).
However, if the derivation of liberty is just incidental to the transportation of the victim to the
place where he will be executed, the crime is murder. Kidnapping with homicide is not committed
because of lack of intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655, July 22,
2009).
b. Doctrine of absorption - In robbery with homicide, all other felonies such as rape,
intentional mutilation, usurpation of authority, or direct assault with attempted homicide are
integrated into this special complex crime. This special complex crime is committed as long as
death results by reason or on occasion or robbery without reference or distinction as to the
circumstances, causes or modes or persons intervening in the commission of the crime(People vs.
De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016).
c. Homicide component – A special complex crime of robbery with homicide takes place
when a homicide is committed either by reason, or on the occasion, of the robbery. To sustain a
conviction for robbery with homicide, the prosecution must prove the following elements: (1) the
taking of personal property belonging to another; (2) with intent to gain; (3) with the use of violence
or intimidation against a person; and (4) on the occasion or by reason of the robbery, the crime
of homicide, as used in its generic sense, was committed. A conviction requires certitude that the
robbery is the main purpose, and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking of human life but the killing
may occur before, during or after the robbery. Homicide is said to have been committed by reason
or on occasion of robbery if, for instance, it was committed: (a) to facilitate the robbery or the
escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses in the commission of the
crime (People vs. Balute, G.R. No. 212932, January 21, 2015, )
In robbery with homicide, it is immaterial that the victim of homicide is a bystander (People
vs. Barut, G.R. No. L-42666 March 13, 1979), a responding police (People vs. Pelagio, G.R. No. L-
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16177, May 24, 1967) or one of the robbers (People vs. De Leon, GR No. 179943, June 26,
2009;People vs. Jugueta, G.R. No. 202124, April 05, 2016).
The victim was shot while accused was robbing the passengers of a jeepney. Even if victim's
bag was not taken, accused are liable for special complex crime of robbery with homicide. In this
special complex crime, it is immaterial that the victim of homicide is other than the victim of
robbery, as long as homicide occurs by reason of the robbery or on the occasion thereof. (People
vs. Madrelejos, G.R. No. 225328, March 21, 2018)
The phrase “by reason of the rape” obviously conveys the notion that the killing is due
to the rape, which is the crime the offender originally designed to commit. The victim of the rape
is also the victim of the killing. In contrast, the phrase “on the occasion of the rape” as shown by
Senate deliberations refers to a killing that occurs immediately before or after,or during the
commission itself of the rape, where the victim of the homicide may be a person other than the
rape victim (People vs. Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R. No.
178321, October 5, 2011).
In robbery with homicide, it is immaterial that victim is killed by the responding police
and not by the robber (People vs. Ombao, G.R. No. L-30492, February 26, 1981). But in attempted
robbery with homicide, the offender must be guilty of both crimes. Hence, attempted robbery with
homicide is not committed where the victim was killed by a co-passenger and not by the robber
(People vs. Manalili, G.R. No. 121671, August 14, 1998).
Ordinarily, homicide means killing another person. In sum, the person responsible for
the death of the victim must be the offender. But in the case of People vs. Arpa, G.R. No. L-26789,
April 25, 1969, the victim himself, who jumped from boat, is responsible for his own death, and
yet, the SC convicted the accused of robbery with homicide. In other words, death caused by the
victim himself is considered as homicide, which is a component of robbery with homicide. Hence,
suicide or death caused by the victim herself can be considered as homicide as a component of
special complex crime of rape with homicide.
d. Violence or intimidation in taking the property - If the taking of property is not
committed by means of violence or intimidation, Article 294 of RPC is not applicable. Taking
without violence or intimidation constitutes theft. If after the taking of property by means of
violence or intimidation, the robber killed a responding police officer, the former is liable for
robbery with homicide (People vs. Pelagio, G.R. No. L-16177, May 24, 1967). If after the taking of
the roasters without violence or intimidation, the thief killed responding police officer, he is liable
for theft and direct assault with homicide (People vs. Jaranilla, G.R. No. L-28547, February 22,
1974). If after the snatching of the complainant’s bag without violence or intimidation, a co-robber
crashed the getaway motorcycle and died, the accused is only liable for theft (People vs.
Concepcion, G.R. No. 200922, July 18, 2012).
e. Direct connection - After consummation of robbery, passengers reported the matter
to the police authorities. During the manhunt operation, one of the police officers was killed by a
robbery. The crime committed is not robbery with homicide since the connection between the two
crimes was “not a direct connection" (People vs. Quemeggen, G.R. No. 178205, July 27, 2009).
f. Collective responsibility - When a homicide takes place by reason or on the occasion
of the robbery, all those who took part shall be guilty of the special complex crime of robbery with
homicide whether or not they actually participated in the killing, unless there is proof that they
had endeavored to prevent the killing (Crisostomo vs. People, G.R. No. 171526 September 1, 2010;
People vs. Bongos, G.R. No. 227698, January 31, 2018).
26. Occupation of real property - In simple robbery under Article 294 of RPC, violence
and intimidation is employed to take property. In occupation of real property under Article 312,
violence or intimidation is employed to occupy the real property. If the accused has already
occupied the house of the complainant, and he used violence or intimidation to prevent the said
owner from reoccupying the property, the crime committed is not occupation of real property. The
accused may be held liable of grave threat, grave coercion or discharge of firearm depending upon
the circumstance of the case.
27. Robbery by means of intimidation - In robbery with intimidation of persons, the
intimidation consists in creating fear in the mind of a person in view of a risk or evil that may be
impending, real or imagined. Such fear of injury to person or property must continue to operate
in the mind of the victim at the time of the delivery of the money. Threat of prosecution and
confiscation of the logs by DENR officers is an intimidation within the meaning of robbery (Sazon
vs. Sandiganbayan, G.R. No. 150873, February 10, 2009).
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A traffic investigator confiscated the driver's license of complainant after figuring in a
vehicular accident. He then demanded and eventually received from him the amount of P2,000.00
from complainant in exchange for the release of his driver's license. Accused employed
intimidation to obtain money from complainant as the act performed by the latter caused fear in
the mind of the former that he might not be able to drive a taxi and earn a living for his family.
Accused was convicted of robbery. (Flores vs. People, G.R. No. 222861, April 23, 2018)
28. Robbery by using force upon thing - Breaking the window of a house and taking
property inside without entering constitutes theft. Breaking the window is not a circumstance
that will qualify the taking into robbery by using force upon things since this crime requires that
the breaking of window is a means to enter the building (People vs. Adorno, CA 40 O.G. 567;
People vs. Jaranilla, G.R. No. L-28547, February 22, 1974). Breaking the window to commit theft
is an ordinary aggravating circumstance.
Using picklock to open a locked cabinet and taking property therein is not robbery by
using force upon thing. To constitute robbery by using force upon thing, the picklock must be
used to open the building and not merely a locked furniture (US vs. Macamay, G.R. No. 11952,
September 25, 1917). Entrusted key is not a false key in robbery by using force upon thing.
A store used as a house is not a dwelling for purpose of appreciating the aggravating
circumstance of disregard of dwelling. A dwelling must be a shelter exclusively used for rest and
comfort (US vs. Baguio, G.R. No. 5332, October 4, 1909). However, for purpose of trespass to
dwelling and robbery by using force upon thing, a store used as a house is a dwelling or inhabited
house (People vs. Tubog, G.R. No. L-26284, Nov. 17, 1926; People vs. Lamahang, G.R. No. 43530,
August 3, 1935). For purpose of robbery by using for upon thing committed inside the store
located at the first floor while the second floor is used as a dwelling, a store shall be considered
as a dependency of an inhabited house (U.S. vs. Ventura, G.R. No. L-13715, January 22, 1919).
For purpose of robbery by using for upon thing committed inside the store, which is not used as
a house, the store shall be considered as a private building (Marquez vs. People, G.R. No. 181138
December 3, 2012).
Under Article 299 or Article 302, entry into the building is an essential element of robbe
ry by using force upon anything. Such entry can be made by actual force such as breaking the
window or constructive force such as by means of simulation of authority or using false name.
Using picklock or similar tools to gain entry into a building is also a mode of committing robber
y by using force upon anything under these provisions.
However, motor vehicle is not a building within the contemplation of Article 299 or 302
(See: Revised Penal Code, Book 2, CA Justice Luis Reyes; unless the car has comfort room,
kitchen and bed). Thus, taking car stereo after breaking the window of the
motor vehicle is not robbery by using force upon anything.
Such taking constitutes of the crime of simple theft under Article 309 of the Revised Pe
nal Code. In People vs. Jaranilla, L-28547, February 24, 1974, taking the roaster after breaking
the chicken coop, which is not a building, is simple theft.
29. Complex crime of two robberies - In Sebastian case, when the elements
of both robbery by means of violence and intimidation and robbery by using force upon thing are
present, the accused shall be held liable of the former since the controlling qualification is the
violence and intimidation. However, the penalty for robbery in inhabited house if the robber is
armed is graver than simple robbery. Hence, by hurting the victim, the offender shall be penalized
with a lighter penalty. Since Sebastian principle defies logic and reason, People vs. Napolis, G.R.
No. L-28865, February 28, 1972 abandoned it. Under the present rule, when the elements
of both robbery by means of violence and intimidation and robbery by using force upon thing are
present, the crime is a complex one under Article 48 of said Code. Hence, the penalty for robbery
in inhabited house shall be imposed in its maximum period (People vs. Disney, G.R. No. L-41336,
February 18, 1983; Fransdilla vs. People, GR No. 197562, April 20, 2015). If the entry into the
dwelling is without force upon thing, and the property was taken by means of violence or
intimidation, the crime committed is robbery by means of violence or intimidation with
aggravating circumstance of disregard of dwelling (People vs. Tejero, G.R. No. 128892 June 21,
1999; People vs. Evangelio, G.R. No. 181902, August 31, 2011). When the elements of both
robbery with homicide and robbery by using force upon thing (unlawful entry) are present, the
former shall absorb the latter. In sum, robbery by using force upon thing committed on occasion
of robbery by means of violence or intimidation shall be integrated into the special complex crime
of robbery with homicide (People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta,
G.R. No. 202124, April 05, 2016). But aggravating circumstances of disregard of dwelling and
unlawful entry shall be both appreciated (People vs. Lamosa, G.R. No. 74291-93, May 23, 1989).
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30. Compound crime - The single act of rolling the hand grenade on the floor of the
gymnasium which resulted in the death of victims constituted a compound crime of multiple
murders (People vs. Mores, GR No. 189846, June 26, 2013). Where the use of grenade renders
the victim defenseless, “use of explosives” shall be considered as a qualifying circumstance
because this is the principal mode of attack. Thus, treachery will be relegated merely as a generic
aggravating circumstance (People vs. Comadre, et al., G.R. No. 153559, June 8, 2004). The single
act of running over the victims with a van constitutes compound crime of multiple murders
(People vs. Punzalan, Jr., G.R. No. 199892, December 10, 2012).
a. Single act treated as several acts - Single act of pressing the trigger of Thompson or
armalite is treated as several acts as many as there are bullets fired from gun. Because of special
mechanism of Thompson, the single act of pressing its trigger will cause the continuous firing of
bullets. Thus, accused is liable as many homicides as there are victims (People vs. Desierto, (C.A.)
45 O.G. 4542; People vs. Sanchez, G.R. No. 131116, August, 27, 1999; People vs. Tabaco, G.R.
Nos. 100382-100385 March 19, 1997; People v. Vargas, Jr., G.R. No. 86728, April 6, 1990; People
vs. Bermas, G.R. Nos. 76416 and 94312 July 5, 1999).
b. Variance rule - The body of the information charged the accused of compound crime
with murder and attempted murder since two victims were hit by a single shot. The evidence
shows that murder and attempted murder are separate crimes since the two victims were hit by
several shot. Under the variance rule, if the crime alleged in the information varies with the crime
proven with evidence, the accused shall be convicted of the crime alleged or proven whichever the
lesser. Thus, accused shall be convicted of complex crime, which is lesser compared to two crimes
(People vs. Bernardo, GR No. 198789, June 03, 2013).
c. Several acts - Several acts in killing several victims do not constitute a compound
crime. Article 48 requires a single act constituting two or more crimes (People vs. Toling, G.R. No.
L-27097, January 17, 1975). Exceptions: Several acts in killing several victims under a single
criminal impulse (People vs. Lawas, L-7618-20, June 30, 1955) or under single criminal purpose
(People vs. Abella, G.R. No. L-32205 August 31, 1979) shall be considered as a single act. Hence,
it is a compound crime.
The “single criminal impulse rule” under the Lawas doctrine is more of an exception than
the general rule (People vs. Remollino, G.R. No. L-14008, September 30, 1960). Article 48 on
compound crime speaks of single act, but not single criminal impulse (People vs. Pineda, G.R. No.
L-26222, July 21, 1967). In Lawas case, the SC was merely forced to apply Article 48 because of
the impossibility of ascertaining the number of persons killed by each accused (People vs.
Nelmida, G.R. No. 184500. September 11, 2012). Thus, the Lawas doctrine should not be applied
if there is conspiracy since the number of victims actually killed by each conspirator is not
anymore material if there is conspiracy (People vs. Elarcosa, G.R. No. 186539, June 29, 2010).
The “single criminal purpose rule” under the Abella case was adopted in consideration of
the plight of the prisoners; hence, it is only applicable if killings were commit by prisoners against
their fellow prisoners (People vs. Pincalin, G.R. No. L-38755, January 22, 1981; People vs.
Nelmida, G.R. No. 184500, September 11, 2012
31. Complex crime proper - Stabbing after the rape is a separate crime of frustrated
homicide. This is not a complex crime proper since the latter is not necessary to commit the
former (People vs. Isla, G.R. No. 199875, November 21, 2012).
a. Abduction and rape - If the main objective of the accused is to rape the victim, the
crime committed is rape. Forcible abduction (People vs. Mejoraday, G.R. No. 102705, July 30,
1993; People vs. Almanzor, G.R. No. 124916, July 11, 2002) or illegal detention (People vs.
Nuguid, G.R. No. 148991, January 21, 2004), which is incidental to the commission of rape, is
absorbed. The doctrine of absorption rather than Article 48 of RPC is applicable since forcible
abduction or illegal detention is an indispensable means to commit rape.
If forcible abduction is a necessary means to commit rape, this is a complex crime proper
under Article 48 of RPC. However, if multiple rapes were committed, forcible abduction will be
considered as a necessary means to commit the first rape but not the subsequent rape. Hence,
with respect to the first rape, the crime committed is complex crime of rape though forcible
abduction while the subsequent rapes will be treated as separate crimes (People vs. Jose, G.R.
No. L-28232, February 6, 1971; People vs. Buhos, G.R. No. L-40995, June 25, 1980; People vs.
Tami, G.R. Nos. 101801-03, May 02, 1995; People vs. Garcia, G.R. No. 141125, February 28,
2002, En Banc; People vs. Amaro, G.R. No. 199100, July 18, 2014).
As a rule, forcible abduction is an indispensable means to commit rape; hence, the latter
absorbs the former. However, if the victim was brought in a house or motel or in a place with
considerable distance from the place where she was abducted, forcible abduction will be
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considered as a necessary means to commit rape; hence, the crime committed is complex crime
proper.
If the accused abducted the victim without clear showing of lewd design, the crime
committed is kidnapping since it will appear that the intention of the accused is to deprive victim
of his liberty. If as a consequence of illegal detention, the victim was rape, the crime committed is
a special complex crime of kidnapping with rape. This is the crime committed regardless of the
number of rapes. Multiple rapes will be considered as a component of this special complex crime
(People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011; People vs. Anticamaray, G.R. No.
178771, June 8, 2011). If as a consequence of illegal detention, the victim was rape and then
killed, the crime committed is a special complex crime of kidnapping with homicide. Rape will be
considered as a component of this special complex crime (People vs. Larranaga, 138874-75,
February 3, 2004).
The difference between rape through forcible abduction and kidnapping with rape lies on
the criminal intention of the accused at the precise moment of abduction. If the abduction is
committed with lewd design, the crime committed is rape through forcible abduction. On the other
hand, if the abduction is committed without lewd design, the crime committed is kidnapping with
rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Even if the victim was detained
for one week and in the course thereof, she was rape, the crime committed is rape through forcible
abduction if the abduction is committed with lewd design (People vs. Amaro, G.R. No. 199100,
July 18, 2014).
If the accused was molesting the victim immediately upon abduction, that is proof that
abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by
accused, the victim became dizzy and thereafter, she passed out. When she regained
consciousness, she notices that she and accused are naked inside a room. She was raped and
detained for 6 days. The crime committed is rape through forcible abduction (People vs. Amaro,
G.R. No. 199100, July 18, 2014).
32. Complex crime and special complex crime - In a composite crime, the composition
of the offenses is fixed by law, but in a complex or compound crime, the combination of the
offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the
necessary means to commit the other. In a composite crime, the penalty for the specified
combination of crimes is specific, but in a complex or compound crime the penalty is that
corresponding to the most serious offense, to be imposed in the maximum period. A light felony
that accompanies the commission of a complex or compound crime may be made the subject of
a separate information, but a light felony that accompanies a composite crime is absorbed (People
vs. Esugon, G.R. No. 195244, June 22, 2015).
33. Doctrine of absorption - If murder, kidnapping or arson committed in furtherance of
rebellion, they will be divested of their character as common crimes and will assume the political
complexion of rebellion. Hence, rebellion absorbs these crimes (People vs. Geronimo, G.R. No. L8936, October 23, 1956; People vs. Hernandez, G.R. Nos. L-6025-26, July 18, 1956; Enrile vs.
Salazar, G.R. No. 92163 June 5, 1990). Doctrine of absorption is applicable to coup d’etat for
being a political crime because the purpose of coup plotter is to seize or diminish state power
(Gonzales vs. Abaya, G.R. No. 164007, August 8, 2006, concurring opinion by Justice Callejo).
Membership in CPP-NPA alone will not establish political motivation behind the killing for
purpose of convicting the killers for rebellion (People vs. Lovedioro, G.R. No. 112235, November
29, 1995; People vs. Solongan, G.R. No. 137182, April 24, 2003). But membership in a liquidation
squad and killing a government officer is sufficient to establish political motivation (People v.
Dasig, G.R. No. 100231. April 28, 1993).
RA No. 6968 eliminated the phrases "engaging in war against the forces of the
government", "committing serious violence" and “destroying property” in Article 135 of RPC. These
modes of committing rebellion deleted by RA No. 6968 were used by the SC in justifying the
doctrine of absorption. The amendment of Article 135 does not affect the accepted concept of
rebellion and these “overt acts of violence” are deemed “subsumed” in the provision on public and
armed uprising, which is an element of rebellion in Article 134 (Regalado). Hence, the doctrine of
absorption is still good. The incidents in Lovedioro case, and Solongan case happened after RA
No. 6968, and yet, the SC is still applying the doctrine of absorption. In Lagman vs. Medeldea,
G.R. No. 231658, July 04, 2017, the Supreme Court, En Banc, has recognized the absorption
doctrine in rebellion.
a. Sedition - Doctrine of absorption is not applicable to sedition. There is neither law nor
jurisprudence which can allow the absorption of murder and kidnapping by sedition. The
absorption principle in the cases of Hernandez and Geronimo cannot properly be invoked as
authority since those two cases involved rebellion and not sedition (People vs. Hadji, G.R. No. L-
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12686, October 24, 1963). Moreover, public and tumultuous uprising for political or social
purpose, which is the essence of sedition, does not require killings, burning of properties and
extortions.
Senator Antonio Trillanes and other detention prisoners walked-out from the courtroom
during the trial of the Oakwood mutiny case on November 29, 2007. Escorted by armed
supporters and civilians including former Vice-President Teofisto Guingona, Jr., they proceeded
to Manila Peninsula Hotel and forcibly occupied it. They set up a command center at the second
floor of the hotel and made a public statement, to wit: “We take the fateful step of removing Mrs.
Gloria Macapagal-Arroyo from the Presidency and undertake the formation of a new government.”
Former Vice-President Guingona uttered publicly “This is like Edsa”.
The participants of the Manila Peninsula incident including Senator Trillanes, was charged
for rebellion. However, there is an issue on whether or not walking-out from the court room to
Manila Peninsula and the appeal to the public to repeat the Edsa Revolution constitutes rebellion
taking into consideration the ruling of the Supreme Court in People vs. Hernandez, G.R. No. L6025, July 18, 1956, “the word ‘rebellion’ evokes, not merely a challenge to the constituted
authorities, but, also, civil war, on a bigger or lesser scale, with all the evils that go with it.” Civil
war presupposes engaging in combat against the forces of the Government, destroying property or
committing serious violence. By reason thereof, it is submitted that if the facts in the bar
examination is similar to the Manila Peninsula incident, the participants thereof are liable for
sedition since there is public and tumultuous uprising to prevent a pubic office (e.g. the President)
from freely exercising its function by other means outside of legal methods.
b. Incidental deprivation of liberty - AAA lived rent-free in a house owned by accused.
Accused intercepted AAA at the garage area and held a knife to her back and dragged her to his
room and raped her. Shortly after, police authorities arrived; but accused refused to release her
and detained her for a period of time. Although the initial (forcible) abduction of AAA may have
been absorbed by the crime of rape, the continued detention of AAA after the rape cannot be
deemed absorbed in it. Likewise, since the detention continued after the rape had been completed,
it cannot be deemed a necessary means for the crime of rape. Hence, the accused is convicted of
rape and slight illegal detention (People vs. Concepcion, G.R. No. 214886, April 04, 2018, Justice
Leonem) Note: The qualifying circumstance in serious illegal detention that the person detained
is a female is not alleged in the information.
If the principal intention of the offenders is to rob the victims, and the deprivation of their
liberty is just incidental to the prevention of the responding police officers from arresting them,
the crime committed is robbery, which absorbed kidnapping and serious illegal detention (People
vs. Astor, G.R. Nos. L-71765-66, 29 April 1987). However, if the accused committed rape, and
thereafter, detained the victim to prevent the police from arresting him, he is liable for rape and
illegal detention. (People vs. Concepcion, G.R. No. 214886, April 04, 2018)
If the accused committed robbery, but thereafter, they detained the victims to demand
additional money, and later forestall their capture by the police, the crime committed is complex
crime of robbery through kidnapping and serious illegal detention. The detention was availed of
as a means of insuring the consummation of the robbery. The detention was not merely a matter
of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an
additional amount. Hence, the Astor principle is not applicable (People vs. Salvilla, G.R. No. 86163
April 26, 1990). If the accused committed robbery by band, but thereafter, they took one of the
victims and detained him for seven days in another place for purpose of demanding ransom, they
are liable of separate crimes of robbery by band and kidnapping for ransom (People vs. Basao,
G.R. No. 189820, October 10, 2012).
34. Delito continuado - In order that continuous crime may exist, there should be: (1)
plurality of acts performed separately during a period of time; (2) unity of criminal intent and
purpose and (3) unity of penal provision infringed upon or violated (Santiago vs. Garchitorena ,
GR NO. 109266, December 2, 1993). The following are delito continuado: (1) several acts of taking
roasters owned by different owner under a single criminal impulse to take them all in violation of
a single penal provision, and that is Article 308 of RPC (Note: This is also called single larceny
rule; People vs. Jaranilla, G.R. No. L-28547, February 22, 1974); and (2)several acts of taking
away by force the valuables of the employees working in Energex gasoline station committed
under a single criminal intent to commit robbery in that place in violation of a single penal
provision, and that is Article 294 of RPC (People vs. De Leon, GR No. 179943, June 26, 2009).
Accused inserted his penis thrice into the private part of victim for purpose of changing
position. The three penetrations motivated by a single criminal intent to satisfy his lust in
violation of single penal provision (Article 266-A of RPC) constitute a continued crime of rape
(People vs. Aaron, G.R. Nos. 136300-02, September 24, 2002). Accused inserted his penis thrice
into the private part of victim for purpose of resting for five minutes. He satisfied his lust every
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time he would withdraw his penis to rest. Since the three penetrations were motivated by separate
three criminal impulse to satisfy his lust, three separate crimes of rape are committed (People vs.
Lucena, GR No. 190632, February 26, 2014).
Foreknowledge doctrine - There is no delito continuado where the accused when he
committed the first threat against the victim has no foreknowledge that he will chance upon the
second and third victims to commit the second and third threat. Without such foreknowledge,
three threats could not be said to have been committed under a single criminal impulse, which is
the basis of applying delito continuado principle. Several threats can only be considered as
continued crime if the offender threatened three individuals at the same place and at the same
time (Paera vs. People, G.R. No. 181626, May 30, 2011).
35. Subsidiary imprisonment - Under Article 78 of RPC, no penalty shall be executed
except by virtue of a final judgment. Subsidiary imprisonment is a penalty since under Article
39 of RPC, it is imposed upon the accused and served by him in lieu of the fine which he fails to
pay on account of insolvency. Where the judgement finding the accused guilty does not impose
subsidiary imprisonment in case of non-payment of fine by reason of insolvency, the court could
not legally compel him to serve said subsidiary imprisonment. To rule otherwise is to violate RPC
and the constitutional provision on due process (People vs. Alapan, G.R. No. 199527, January
10, 2018).
36. Reclusion perpetua - Reclusion perpetua, which has duration of 40 years under
Article 27 of RPC, and 30 years under Article 29 of RPC as amended by RA No. 10592 if the
convict has undergone preventive imprisonment, is a lighter penalty than life imprisonment, which
has no duration. Amendatory law, which prescribes reclusion perpetua instead of life
imprisonment, shall be given a retroactive effect for being favorable to the accused. (People vs.
Morilla, GR No. 189833, February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229 October 19,
2011)
Reclusion perpetua, which has duration of 40 years, and 30 years if the convict has
undergone preventive imprisonment, is a lighter penalty than life imprisonment, which has no
duration. Amendatory law, which prescribes reclusion perpetua instead of life imprisonment,
shall be given a retroactive effect for being favorable to the accused. (People vs. Morilla, GR No.
189833, February 5, 2014; Ho Wai Pang v. People, G.R. No. 176229 October 19, 2011)
37. Special mitigating circumstance - Under Article 63, par. 2 (3), if the penalty
prescribed by law is composed of two indivisible penalties (e.g. reclusion perpetua to death), and
the commission of the act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty (of reclusion perpetua) shall be applied.
Special mitigating circumstance, which requires the graduation of penalty by one degree,
is found in Article 64 (4) on rules for the application of penalties which contain three periods
(divisible penalties). Reclusion perpetua to death is not a penalty, which contain three periods.
Where the penalty is reclusion perpetua to death, the applicable rule is Article 63 on rules for
application of indivisible penalty, which has no provision on special mitigating circumstance.
(People v. Takbobo, G.R. No. 102984, June 30, 1993) Thus, the penalty of reclusion perpetua to
death prescribed for parricide cannot be lowered by one degree, and that is, reclusion temporal,
no matter how many mitigating circumstances are present. The effect of the two mitigating
circumstance is the application of the lesser component of reclusion perpetua to death. In sum,
the court shall apply the lesser penalty of reclusion perpetua. (People v. De Los Santos, G.R. No. L2405, March 31, 1950; People v. Castañeda, G.R. No. 41085, September 14, 1934; People v.
Relador, G.R. No. 40900, September 14, 1934)
In People vs. Genosa, G.R. No. 135981, January 15, 2004, the Supreme Court reduced
reclusion perpetua to death prescribed for parricide to reclusion temporal by reason of the
attendance of special mitigating circumstance of passion and illness pursuant to Article 64. This
case disregarded the well-settled principle in the Takbobocase.
In People vs. Brusola, G.R. No. 210615, July 26, 2017, Justice Leonem, the court
convicted the accused of parricide, and found the mitigating circumstances of passion and
surrender. Accused citing Genosa case argued that reclusion perpetua to death should be reduced
to reclusion temporal by reason of the special mitigating circumstance. However, the Supreme
Court through Justice Leonem refused to apply the Genosa principle. It was held that considering
that the penalty for parricide consists of two indivisible penalties (reclusion perpetua to death),
Article 63, and not Article 64, is applicable. Thus, the penalty of reclusion perpetua was properly
imposed.
In sum, Brusola reverted back to the Takbobo principle.
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38. Mandatory application of the Islaw - The application of the Indeterminate Sentence
Law is mandatory to both the Revised Penal Code and the special laws (Romero vs. People, G.R.
No. 171644, November 23, 2011). However, the Supreme Court, in People vs. Nang Kay, G. R. No.
L-3565, April 20, 1951, has provided an exception. In this case, the accused pleaded guilty to
offense where the law prescribed a penalty of 5 to 10 years imprisonment. The court sentenced
the accused to suffer 5 years of imprisonment. The Supreme Court sustained the penalty. Fixing
the penalty at the minimum limit without applying Act No. 4103 is favorable to the accused since
the accused shall be automatically released upon serving 5 years of imprisonment. Applying Act
No. 4103 would lengthen the penalty because the indeterminate maximum penalty must be
necessarily more than 5 years (People vs. Arroyo, G.R. No. L-35584-85, February 13, 1982).
However, the Nang Kay principle is not applicable where the crime is punishable under the
Revised Penal Code. The application of ISLAW is always mandatory if the penalty is prescribed by
RPC since it is favorable to the accused. It is favorable to the accused since in fixing the minimum
penalty, the prescribed penalty under the Code shall be lowered by one degree. On the other hand,
in fixing the minimum penalty for offense under special law involved in the Nang Kay case, the
prescribed penalty shall not be lowered (People vs. Judge Lee, Jr, G.R. No. 66859, September 12,
1984). The Nang Kay principle is not also applicable where the accused does not deserve a lenient
penalty. In Batistis vs. People, G.R. No. 181571, December 16, 2009, the SC said the Nang
Kay exception is not applicable where there is no justification for lenity towards the accused since
he did not voluntarily plead guilty, and the crime committed is a grave economic offense because
of the large number of fake Fundador confiscated.
39. Adoption of the technical nomenclature of the Spanish penalty – When a special
law adopts the technical nomenclature of the penalties (e.g. prison mayor) in RPC, the intention
of the law is to adopt the provisions under this Code on imposition of penalty (People v. Simon,
G.R. No. 93028, July 29, 1994). Special aggravating circumstance of organized/syndicated crime
group (People v. Esparas, G.R. No. 120034, July 10, 1998); The
privileged
mitigating
circumstance of minority (People v. Montalaba, G.R. No. 186227, July 20, 2011; People v. Musa,
G.R. No. 199735, October 24, 2012); and special aggravating circumstance of quasi-recidivism
(People v. Salazar, G.R. No. 98060, January 27, 1997) were appreciated in malum prohibitum
crime where the law punishing it adopts the technical nomenclature of the penalty of RPC. The
penalty for illegal possession of loose firearm shall be applied in its minimum period because of
the mitigating circumstance of confession (Jacaban v. People, G.R. No. 184355, March 23, 2015),
and the penalty for sexual abuse (Malto v. People, G.R. No. 164733, September 21, 2007), that for
fencing (Cahulugan vs. People, G.R. No. 225695, March 21, 2018) and that for violence against
woman (Melgar vs. People, G.R. No. 223477, February 14, 2018) shall be applied in its medium
period in the absence of modifying circumstance.
If the special law has not adopted the technical nomenclature of penalties in the Revised
Penal Code, the intention of the law is not to adopt the provisions of this Code on imposition of
penalties. Moreover, modifying circumstances cannot be appreciated since the penalty not
borrowed from the Code has no periods. The crime has no attempted or frustrated stage since
this penalty cannot be graduated one or two degrees lower.
For example, the accused confessed to an offense where the special law prescribes the
penalty of not more than 10 years of imprisonment but not less than 5 years (American penalty).
Under Article 63 of the Revised Penal Code, if there is a mitigating circumstance such as
confession, the penalty shall be applied in its minimum period. However, confession cannot be
appreciated since the penalty prescribed by law, which is not borrowed from the Code, has no
minimum period.
However, the Simon principle is not applicable if the crime committed involved dangerous
drugs because R.A. No. 9165 has a special rule on the application of the provisions of the Revised
Penal Code. Under Section 98 of R.A. No. 9165, notwithstanding any law, rule or regulation to
the contrary, the provisions of the Revised Penal Code shall not apply to the provisions of this
Act, except in the case of minor offenders.
R.A. No. 9165 has not adopted the technical nomenclature of the penalties of the Revised
Penal Code (e.g. the penalty for possession of dangerous drugs involving shabu of less than 5
grams is imprisonment of 12 years and 1 day to 20 years). If the accused is a minor, the penal
system of the Revised Penal Code shall apply because Section 98 of R.A. No. 9165 say so. To apply
the penal provisions of the Code, the penalty for R.A. No. 9165 must be converted into a Spanish
penalty. For example, the penalty for sale of dangerous drugs or importation of dangerous drugs
is life imprisonment to death. If the accused is a minor, this penalty shall be converted into
reclusion perpetua to death. Taking into consideration the privileged mitigating circumstance of
minority, reclusion perpetua to death shall be reduced to reclusion temporal. (People v. Montalaba,
G.R. No. 186227, July 20, 2011; People v. Musa, G.R. No. 199735, October 24, 2012).
However, even though Section 98 of RA No. 9165 mandates the application of the provisions
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of the Revised Penal Code in a case where the offender is a minor, if the penalty for a crime
involving dangerous drugs cannot be converted into a Spanish penalty, the penal provisions of
the Revised Penal Code shall not apply. For example, the penalty for use of dangerous drugs
committed by a first-time offender is rehabilitation. Even if the offender is a minor, the privileged
mitigating circumstance of minority shall not be considered because this penalty of rehabilitation
cannot be converted into Spanish penalty, and thus, it cannot be reduced one degree lower.
40. Three-fold rule - The three-fold rule is to be taken into account not in the imposition
of the penalty but in connection with the service of the sentence imposed (People vs. Escares, G.R.
No. L-11128-33, December 23, 1957; Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June
30, 1987). Thus, the court cannot dismiss criminal cases in excess of three on the basis of threefold rule.
41. Good conduct time allowance – There are three benefits given by the controversial
RA No. 10592, to wit: (1) credit of preventive imprisonment; (2) GCTA for preventive imprisonment;
and (3) GCTA for imprisonment.
a. Credit for preventive imprisonment - Credit of preventive imprisonment is governed
by Article 29 of the Revised Penal Code as amended by RA No. 10592. Under this provision,
offenders who have undergone preventive imprisonment shall be credited in the service of their
sentence except in the following cases: (1) when they are recidivists, (2) when they have been
convicted previously twice or more times of any crime; and (3) when upon being summoned for
the execution of their sentence they have failed to surrender voluntarily.
b. GCTA for preventive imprisonment - GCTA for preventive imprisonment is governed
by Articles 29 and 97 of the Code as amended by RA No. 10592. Under Article 29, whenever an
accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged, he shall be released immediately; for purposes of immediate
release, the computation of preventive imprisonment shall be the actual period of detention with
GCTA. However, the entitlement of GCTA for preventive imprisonment is subject to a qualifying
proviso, which is quoted as follows: “Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the coverage of this Act.”
c. GCTA for imprisonment – GCTA for imprisonment is governed by Article 97 of the
Code as amended by RA No. 10592. Unlike Article 29 on GCTA for preventive imprisonment,
Article 97 on GCTA for imprisonment does not provide an exclusionary or disqualification clause
or qualifying proviso.
The last paragraph of Article 29 contains provisions on GCTA for preventive imprisonment.
The phrase subsequent to the words “provided finally” in Article 29 is a proviso, which contains
the exceptions to the rule under the provision. Settled is the rule that a proviso containing the
exceptions will merely qualify the provision containing the general rule that immediately preceded
it.
In People vs. Tulugan, G.R. No. 227363, March 12, 2019, it was held that the office of the
proviso qualifies or modifies only the phrase immediately preceding it or restrains of limits the
generality of the clause that it immediately follows. A proviso is to be construed with reference to
the immediately preceding part of the provisions, to which it is attached, and not to the statute
itself or the other sections thereof.
Applying the Tulugan principle, the proviso in Article 29 on “the exclusion of heinous
criminals, habitual delinquents, recidivists and escapes from the coverage of RA No. 10592” merely
qualifies the provision in Article 29 on GCTA for preventive imprisonment. The qualifying effect of
the proviso under Article 29 cannot extend to the provision under Article 97 on GCTA for
imprisonment. Hence, the author of this book humbly submit that heinous criminals, habitual
delinquents, recidivists and escapes are disqualified from the benefit of GCTA for preventive
imprisonment; but they are not disqualified from the benefit of GCTA for imprisonment.
42. Modes of criminal extinction – The modes of extinguishing criminal liability are:
death of the offender; service of the sentence; amnesty or absolute pardon; prescription of crime,
or penalty; marriage between the offender and the offended in crimes against chastity (Article 89
of RPC) or in rape; or forgiveness in marital rape (Article 266-C); and probation (PD No. 968 as
amended by RA No. 10707).
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43. Re-election - Re-election to public office is not provided for in Article 89 of the
Revised Penal Code as a mode of extinguishing criminal liability for criminal offense incurred by
a public officer prior to his re-election. (Oliveros v. Judge Villaluz, G.R. No. L-34636, May 30,
1974; 1974 and 1980 Bar Exams)
Under the old rule, a re-elected public official could not be removed for administrative
offense committed during a prior term, since his re-election to office operates as a condonation of
his misconduct to the extent of cutting off the right to remove him therefor. (Aguinaldo v. Santos,
G.R. No. 94115, August 21, 1992) However, in Morales v. CA and Binay, G.R. Nos. 217126-27,
November 10, 2015, , doctrine of administrative condonation has been abandoned because it is
plainly inconsistent to the concept of public office is a public trust and the corollary requirement
of accountability to the people at all times, as mandated under Section 1, Article XI of the 1987
Constitution. Election is not a mode of condoning an administrative offense. In this jurisdiction,
liability arising from administrative offenses may only be condoned by the President. Power to
grant executive clemency under Section 19, Article VII of the 1987 Constitution extends to
administrative offense.
But the Binay principle shall be given a prospective effect. Hence, if a public officer is
reelected before November 10, 2015 (the date of the ruling in the Binay case), he can still use the
condonation doctrine as a defense in an administrative case. (Ombudsman vs. Mayor Vergara,
G.R. No. 216871, December 6, 2017)
44. Novation - Novation is not a mode of extinguishing criminal liability but it can
extinguish the old contract, which may be the basis of criminal liability. In estafa through
misappropriation, “receiving the property in trust” is an element thereof. In sum, contract is an
ingredient of this crime. Novation may convert the contract of trust into creditor-debtor situation,
or put doubt on the true nature of the original transaction (People vs. Nery, G.R. No. L-19567,
February 5, 1964). In these situations, the accused will be acquitted for failure to prove the
element of “receipt of property in trust.” Thus, novation is a defense in estafa through
misappropriation where the contract of agency is converted into sale (Degaños vs. People, GR No.
162826, October 14, 2013). However, partial payment and promise to pay the balance of
obligation under contract of agency will not convert it into sale. There is no novation since the
obligation of the accused in making a partial payment is not incompatible to the obligation to give
the proceeds of sale of the property under the contract of agency (Degaños vs. People, supra).
Novation cannot be used as a defense in case where the existence of contract is not an
element. In theft case, there was no contractual relationship or bilateral agreement which can be
modified or altered by the parties (People vs. Tanjutco, G.R. No. L-23924, April 29, 1968, En
Banc). In estafa through falsification of public documents, the liability of the offender cannot be
extinguished by mere novation (Milla vs. People, G.R. No. 188726, January 25, 2012).
45. Death - Death of an accused pending appeal shall extinguish his criminal liability and
civil liability arising from crime (Article 89 of RPC); but not his civil liability arising from a source
other than crime (e.g. quasi-delict, contract, quasi-contract or law). Civil liability arising from a
source other than crime is not deemed included in the institution of criminal action. Hence, the
private complainant must file a separate civil action against either the executor or administrator,
or the estate of the accused. During the pendency of the criminal case, the statute of limitations
on this surviving civil liability is deemed interrupted (People vs. Bayotas, G.R. No. 102007,
September 2, 1994). However, in violation of BP Blg. 22, civil liability arising from a source other
than crime is mandatorily included in the institution of criminal action. Hence, the court, despite
the death of the accused pending appeal, must determine his civil liability arising from contract
(Bernardo vs. People, G.R. No. 182210, October 05, 2015). In sum, the private complainant is not
required to file a separate civil action based on contract involving a dishonored check.
46. Immutability of final judgement - Under the doctrine of finality of judgment or
immutability of judgment, a decision that has acquired finality becomes immutable and
unalterable, and may no longer be modified in any respect, even if the modification is meant to
correct erroneous conclusions of fact and law, and whether it be made by the court that rendered
it or by the Highest Court of the land. Nonetheless, the immutability of final judgments is not a
hard and fast rule as the Court has the power and prerogative to relax the same in order to serve
the demands of substantial justice. (People vs. Layag, G.R. No. 214875, October 17, 2016)
If the death of the accused happened prior to the finality of the judgement convicting him
of rape and acts of lasciviousness, but the Supreme Court was belatedly informed of such death
only after the finality of such judgment, the case will be re-opened for purposes of dismissing the
case. (People vs. Layag, G.R. No. 214875, October 17, 2016) If the penalty imposed by the trial
court is not in accordance with the law, the Supreme Court can re-open a final and immutable
judgement judgment to impose the correct penalty under the law. (Bigler vs. People, G.R. No.
210972, March 19, 2016) If the new law prescribes a lesser penalty for the crime of which the
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accused was previously convicted by final judgement, the Supreme Court can re-open a final and
immutable judgement judgment to impose the lesser penalty under the new law. In sum, the new
law shall be given a retroactive effect. (Hernan vs. Honorable Sandiganbayan, G.R. No. 217874,
December 5, 2017). Layag case, Bigler and Hernan case are exceptions to the immutability of final
judgment rule.
47. Pardon - Person, who was pardoned for the crime punishable by reclusion perpetua,
cannot run in the Senatorial race if the terms of the pardon have not expressly restored his right
to hold public office (Article 36 of RPC) or expressly remitted the accessory penalty of perpetual
absolute disqualification (Article 41). GMA pardoned President Estrada with express restoration
of his civil and political rights. Hence, he is eligible to run as Mayor (Risos-vidal vs. Lim, G.R. No.
206666, January 21, 2015).
48. Amnesty - In Vera vs. People, G.R. No. L-18184, January 31, 1963, the Supreme
Court En Banc rejected the argument of the petitioners that it is not necessary for them to admit
the commission of the crime charged to be entitled to the benefits of amnesty proclamation.
Amnesty presupposes the commission of a crime, and when an accused maintains that he has
not committed a crime, he cannot have any use for amnesty. Where an amnesty proclamation
imposes certain conditions, as in this case, it is incumbent upon the accused to prove the
existence of such conditions. The invocation of amnesty is in the nature of a plea of confession
and avoidance, which means that the pleader admits the allegations against him but disclaims
liability therefor on account of intervening facts which, if proved, would being the crime charged
within the scope of the amnesty proclamation.
a. Amnesty commission - Under Amnesty Proclamation no. 8, dated September 7, 1946
issued by President Roxas and concurred by Congress, declares amnesty in favor of persons, who
committed felony in furtherance of the resistance to the enemy during the Japanese occupation.
The proclamation tasked the Amnesty Commission to determine if the crime is committed within
the terms thereof. However, while the Commission can take cognizance of the applications for
amnesty, the courts are not excluded to decide any claim for amnesty. An accused charged before
the courts may claim amnesty as a defense, waive the filing of an application therefor, and submit
evidence thereof in the trial of his case (to prove that the crime was committed in furtherance of
the resistance to the enemy). In sum, while all applications should be passed upon by
commissions, an accused may, instead of filing an application, choose the alternative remedy of
just raising the issue in a court of justice in the trial of his case (People vs. Macadaeg, G.R. No.
L-4316, May 28, 1952). If a person opted to file an application for amnesty with the commission,
but he is unable to obtain his release through executive channels although he is entitled to the
benefits of this proclamation, it devolves on the courts to protect his right (Tolentino vs. Catoy,
G.R. No. L-2503, December 10, 1948).
b. Criminal extinction - Under Article 89 of the Revised Penal Code, amnesty totally
extinguishes criminal liability, the penalty for the crime and all its effects. However, if the granting
of benefit under amnesty proclamation is subject to a condition, the criminal extinction will only
occur upon happening of the condition and not upon the issuance of the proclamation by the
President, or concurrence of Congress.
Under Amnesty Proclamation no. 8, dated 1946, the amnesty covers crimes committed in
furtherance of resistance against the enemy as determined by the Commission. In Vera vs.
Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court ruled that the criminal
liability of the appellee had been completely extinguished by virtue of the amnesty extended to
him by Commission in 1956.
Amnesty Proclamation no. 76, dated June 21, 1948 issued by President Quirino, granted
amnesty to huks, who have committed the rebellion subject to the condition that they must
presented themselves with all their arms to the authorities within 20 days from the date of
concurrence by the Congress. Compliance with the condition as determined by the amnesty
commission or the court shall extinguish his criminal liability (Tolentino vs. Catoy, G.R. No. L2503, December 10, 1948).
c. Revocation of the amnesty – Proclamation No. 75 issued by President Aquino and
concurred in by Congress granted amnesty to the participants of July 27, 2003 Oakwood Mutiny,
the February 2006 Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident.
Under Section 2 of Proclamation No. 75, they have to apply with the ad hoc committee of the
Department of National Defense to be entitled to the benefit of the amnesty proclamation.
President Duterte on August 31, 2018 issued Proclamation No. 572 declaring the granting of
amnesty to Senator Trillianes as null and void for failure to file application as required in Section
2 of Proclamation No. 75. The Proclamation No. 572 is not a revocation of Proclamation No. 75
but a declaration of nullity of the granting of amnesty for failure to comply with Section 2 of the
amnesty proclamation. Thus, it seems the issue in this declaration of nullity is factual rather than
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constitutional. In sum, Proclamation No. 572 did not revoke the amnesty granted by President
Aquino and concurred in by Congress. It merely declared null and void the granting of the benefit
of the amnesty by Department of National Defense to Senator Trillianes. Prolamation No. 572 is
an attack against the decision of Department of National Defense granting amnesty and not
against the bilateral acts of President Aquino and Congress in issuing Proclamation No. 75. By
basing his declaration of nullity of the granting of amnesty on failure to file an application, the
President is invoking Section 2 of Proclamation No. 75; hence, he is in effect validating the
amnesty proclamation rather than revoking it.
Can the incumbent President revoke the amnesty proclamation issued by a former
President and concurred in by Congress? No. Amnesty proclamation issued by a former President
under express authority of the Constitution and concurred in by Congress has the nature, force,
effect, and operation of a law (People vs. Macadaeg, G.R. No. L-4316, May 28, 1952). Hence, an
incumbent president cannot unilaterally revoke the bilateral acts of the former President and
Congress in making an amnesty proclamation. Same as a law, amnesty proclamation can only
revoke by concurrent actions of the President and Congress. Moreover, amnesty extinguishes the
criminal liability of the amnesty beneficiary. Hence, revocation made after the criminal extinction
will not prejudice the amnesty beneficiary.
Can the incumbent President nullify the decision of the Department of National Defense
for failure to file application for amnesty as an express precondition to the granting of the benefit
under an amnesty proclamation and failure to admit his guilt? Yes. The Department of National
Defense is under the control power of the President. Hence, he can nullify its decision granting
amnesty benefit despite of the failure of the beneficiary to comply with conditions of the amnesty
proclamation. But the nullification is subject to the judicial review. If the court finds that amnesty
beneficiary made an application and admitted his guilt therein and the Department of National
Defense properly approved the application, it may reverse the decision of the President on the
ground of grave abuse of discretion tantamount to lack or in excess of jurisdiction. The proper
approval of the amnesty application extinguishes the criminal liability of the applicant for the
crime covered by the proclamation.
d. Non-delegation of power - Legislative, executive and judicial powers belong to the
people because “sovereignty resides in the people and all government authority emanates from
them”. When the people ratified the 1987 Constitution, they delegated these powers to the three
main branches of government by vesting legislative power, executive power and judicial power in
Congress, the President and Supreme Court and other lower courts, respectively. Since the people
entrust these powers to these organs of government, as a rule they may not re-delegate it to
others. Re-delegation of these powers is a betrayal of the trust reposed to them by the people.
This principle of non-delegability of power is in conformity with the Latin maxim of
“Potestas delegata non potest delagari”, or delegated authority cannot be delegated. The basis of
this doctrine is the ethical principle that such a delegated power constitutes not only a right but
a duty that the delegate must perform through his own judgment without intervention from
another.
However, the principle of non-delegability of power is not an absolute rule. It is subject to
several exceptions. Congress in passing legislation is allowed to authorize an agency under the
Executive Branch to issue implementing rules and to determine the existence of certain facts in
connection with the implementation of the law. The conferment of quasi-legislative power and
quasi-judicial power to an implementing executive agency by Congress is not a violation of maxim
of “potestas delegata non potest delagari.” Thus, Congress can make a tax amnesty and require
the Bureau of Internal Revenue to determine whether a tax payer, who filed a tax amnesty
application, is entitled to the benefit of the law.
Under Amnesty Proclamation no. 8, dated September 7, 1946 issued by President Roxas
and concurred by Congress, declares amnesty in favor of persons, who committed felony in
furtherance of the resistance to the enemy during the Japanese occupation. The proclamation
tasked the Amnesty Commission to determine if the crime is committed within the terms thereof.
In Vera vs. Nanadiego, G.R. No. L-26539, February 28, 1990, the Supreme Court recognized the
amnesty extended by the Commission to amnesty applicant.
49. Prescription – Prescription of crime is a mode of extinguishing criminal liability.
a. Blameless ignorance doctrine - The State and private complainant should not be
blame for failure to institute the case immediately after the commission of the crime if they are
ignorant or has no reasonable means of knowing the existence of a crime. Under "blameless
ignorance" doctrine (Section 2 of Act 3326 and Article 91 of RPC), the prescription runs only upon
discovery of the crime by offended party or State through a person in authority or his agent.
Considering that during the Marcos regime, no person would have dared to assail the legality of
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the transactions involving cronies such as behest loan, it would be unreasonable to expect that
the discovery of the unlawful transactions was possible prior to 1986 (Disini vs. Sandiganbayan,
G.R. No. 169823-24 and 174764-65, September 11, 2013). Hence, the prescriptive period for
violation of RA No. 3019 commenced from the date of its discovery in 1992 after the Committee
made an exhaustive investigation (Presidential Ad hoc fact-finding committee vs. Hon. Desierto,
G.R. No. 135715, April 13, 2011).
As a general rule under Act 3326, prescription for 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
violation is not known, it shall be counted form the date of discovery thereof (the blameless
ignorance doctrine). In determining whether it is the general rule or the exception that should
apply in a particular case, the availability or suppression of the information relative to the crime
should first be determined. If the necessary information, data, or records based on which the
crime could be discovered is readily available to the public, the general rule applies. Prescription
shall, therefore, run from the date of the commission of the crime. Otherwise, should martial law
prevent the filing thereof or should information about the violation be suppressed, possibly
through connivance, then the exception applies and the period of prescription shall be reckoned
from the date of discovery thereof. Under the law, SALNs are accessible to the public for copying
or inspection at reasonable hours. Under the circumstances, the State is to be presumed to know
of her omissions during the eight-year period of prescription set in Act No. 3326. (People vs. ParbaRural, G.R. No. 231884, June 27, 2018).
b. Discovery by a witness - Prescription runs only upon discovery of the crime by
offended party or person in authority or his agent. For purpose of prescription of crime, the
offended party includes the person to whom the offender is civilly liable. Thus, the widow of the
murdered victim is an offended party (Garcia vs. CA, G.R. No. 119063, January 27, 1997).
Discovery of crime by a mere witness, who is not an offended party, will not commence the running
of prescription.
c. Constructive notice rule - The 10-year prescriptive period for falsification of document
shall commence to run on the date of recording of the falsified deed of sale in the Registry of Deeds
because of the constructive notice rule under the Torren system (People vs. Reyes, G.R. No. 74226,
July 27, 1989).
The accused falsified a notarized Secretary's Certificate by making it appear that a certain
member of the board participated in the meeting where in fact he is already dead. On the basis of
this Certificate, and Deed of Sale, the Registry of Deeds cancelled the title of the corporation’s
property and a new one was issued. Under RPC, the period tor the prescription of offenses
commences from the day on which the crime is discovered by the offended party, the authorities,
or their agents. However, the offender party constructively discovered the crime upon registration
of the Secretary Certificate with the Deed of Sale in the Registry of Deeds because of the rule on
constructive notice to the entire world; hence, the period for prescription commences on the date
of registration of the falsified document. The case was dismissed since the 10-year period of
prescription for falsification lapsed because the information was filed more than 10 years from
the registration of the document. (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
Office of the Civil Registrar. The law on Civil Registry and the Family Code, which governed
registration of marriage, do not provide a rule on constructive notice (Sermonia vs. Court of
Appeals, G.R. No. 109454, June 14, 1994).
d. Non-actionable crime - As a rule, period of prescription commences to run from the
date of discovery of its commission. However, if the crime is not yet actionable at the time of its
commission, period of prescription will commence to run from the time it becomes actionable. In
false testimony, the period of prescription commences to run from the date of the finality of
judgment of a case in which the offender testified falsely. Prior to the date of finality, the crime is
not yet actionable (People vs. Maneja, G.R. No. 47684, June 10, 1941). In violation of BP Blg. 22,
the crime is consummated upon the dishonor of the check by the drawee bank (Bautista vs. Court
of Appeals, G.R. No. 143375, July 6, 2001). However, in violation of BP 22, the four-year period
of prescription for such crime commences to run from the date of the expiration of the five-day
period from receipt of notice of dishonor by the drawer. Prior to that date, the crime is not yet
actionable (People vs. Pangilinan, G.R. No. 152662, June 13, 2012). It would be absurd to
consider the prescriptive period for false testimony or violation of BP Blg. 22 as already running
before it becomes actionable, and yet, the complainant could not cause its interruption because
he is not yet allowed to file a complaint.
e. Filing of complaint for preliminary investigation - If the crime is punishable by the
Revised Penal Code or a special law, the institution of judicial proceeding(e.g. filing of complaint
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or information in court) or executive proceeding (e.g. filing of complaint for preliminary
investigation) interrupts the running of prescription such as the filing of complaint: (1) for
violation of BP Blg. 22 in the prosecutor’s office - People vs. Pangilinan, G.R. No. 152662, June
13, 2012;Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008; (2) for
violation of Revised Securities Act in Securities and Exchange Commission - SEC vs. Interport
Resources Corporation, G.R. No. 135808, October 6, 2008; or (3) violation of RA No. 3019 in the
Ombudsman - Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11,
2013.
The PCGG has no power to investigate cronies of Marcos for violation of RA No. 3019 not
involving ill-gotten wealth. Such investigation for being void ab initio would not interrupt the
running of prescription (People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29,
2009).
If the crime is punishable by an ordinance, only the institution of judicial proceeding shall
interrupt its two-month prescriptive period. The provision in the Rules on Criminal Procedure
regarding the interruption of prescription by institution criminal action is not applicable to
violation of ordinance because it is covered by the Rules on Summary Procedure. Hence, the filing
of complaint involving violation of ordinance for preliminary investigation will not interrupt the
running of the prescription (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588,
October 7, 2013, Justice Leonem).
50. Probation -Probation shall suspend the execution of principal penalty of
imprisonment, and accessory penalty of disqualification (Villareal vs. People, G.R. No. 151258,
December 01, 2014) but not the implementation of the civil aspect of the judgment (Budlong, vs.
Palisok, GR No. 60151, June 24, 1983).
When a judgment of conviction imposing a non-probationable penalty is appealed or
reviewed, and such judgment is modified through the imposition of a probationable penalty, the
defendant shall be allowed to apply for probation based on the modified decision before such
decision becomes final. This notwithstanding, the accused shall lose the benefit of probation
should he seek a review of the modified decision which already imposes a probationable penalty
(Section 4 of PD 968 as amended by RA No. 10707). In Colinares vs. People, G.R. No. 182748,
December 13, 2011, the accused, who was convicted by the lower court of a non-probationable
offense of frustrated homicide, but on appeal was found guilty of a probationable offense of
attempted homicide, may apply for probation. In Villareal vs. People, G.R. No. 151258, December
1, 2014, accused was convicted of homicide, a non-probationable crime, by the trial court.
However, the SC found them liable for reckless imprudence resulting in homicide, which is a
probationable crime, because of lack of dolo. They can still apply for probation.
In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874, December 5, 2017, accused
was convicted of malversation and sentenced to suffer a penalty of 11 years, 6 months and 21
days of prision mayor, which is non-probationable. The judgment becomes final prior to the
effectivity of RA No. 10951. Under Article 217 of the Revised Penal Code as amended by RA No.
10951, the penalty for malversation involving an amount of not exceeding P40,000 is only prision
correccional in its medium and maximum periods. Despite the immutability of a final judgment,
the Supreme Court reduced the penalty to 3 years, 6 months and 20 days of prision correccional
in accordance with RA No. 10951, which penalty is now probationable. It was stated that because
of RA No. 10951, not only must sentence of the accused be modified respecting the settled rule
on the retroactive effectivity of favorable laws, she may even apply for probation. In sum, applying
Section 4 of P.D. No. 968, as amended by R.A. No. 10707, since the judgment of conviction
imposing a non-probationable penalty is modified through the imposition of a probationable
penalty, she is now allowed to apply for probation based on the modified decision before such
decision becomes final.
Under PD No. 968 as amended, crimes against public disorder are non-probationable.
However, under RA No. 10707, crimes against public disorder such as alarm and scandal and
direct assault are now probationable.
The period of probation of a defendant sentenced to a term of imprisonment of not more
than one year shall not exceed two years, and in all other cases, said period shall not exceed six
years. When the sentence imposes a fine only and the offender is made to serve subsidiary
imprisonment in case of insolvency, the period of probation shall not be less than nor to be more
than twice the total number of days of subsidiary imprisonment (Section 14 of PD No. 968).
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Article 89 of the Revised Penal Code (RPC) enumerates the modes of criminal extinction
such as death, pardon and amnesty. In People vs. Henry Go, G.R. No. 168539, March 25, 2014,
it was stated that the only thing extinguished by the death of the offender is his criminal liability.
His death did not extinguish the crime. In People vs. Patriarca, Jr., G.R. No. 135457, September
29, 2000, the Supreme Court ruled that pardon looks forward and abolishes or forgives the
punishment.
Applying the Henry Go case and Patriarca case, the modes mentioned in Article 89 of RPC
such as death and pardon merely extinguish the criminal liability of the offender but not the crime
itself. However, there is a special rule on amnesty. Article 89 of the Revised Penal Code provides
that amnesty completely extinguishes the penalty and all its effects. Because of this special rule
of extinguishment of all effects of the crime, the Supreme Court in Patriarca stated that amnesty
looks backward and abolishes and puts into oblivion the offense itself. In sum, amnesty
extinguishes not only the criminal liability of the offender but also the crime itself.
Under Section 16 of PD No. 968 as amended by RA No. 10707, final discharge of the
probationer extinguishes his criminal liability. The intention of the law is to make a mode of
criminal extinction in addition to those listed in Article 89 of RPC. Since final discharge of the
probationer under Section 16 of PD No. 968 merely extinguishes his criminal liability, and not all
effects of the crime, the effect of such discharge is similar to death or pardon, and not to amnesty.
In sum, discharge of the probationer looks forward and extinguishes merely the criminal liability
and not the crime itself.
Since the previous crime covered by probation is not extinguished by the discharge of the
probationer, the same shall be considered for purposes of determining if the accused is a recidivist
in committing a second crime, which is embraced in the same title.
51. Piracy - Under Section 2(a) of PD 532, "Philippine waters" is defined as bodies of
water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the
Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and
all other waters belonging to the Philippines by historic or legal title, including territorial sea, the
sea-bed, the insular shelves, and other submarine areas over which the Philippines has
sovereignty or jurisdiction. Thus, a river in a municipality is considered as part of Philippine
waters for purpose of piracy (People vs. Dela Pena, G.R. No. 219581, January 31, 2018).
52. Direct assault – Simple assault (such as punching) upon an agent of a person in
authority (e.g. police officer) while engaged in the performance of duty constitutes simple
resistance and not direct assault because there is no intent to defy the law and its representative
at all hazard, which is an element thereof (U.S. vs. Tabiana, G.R. No. 11847, February 1, 1918;
U.S. vs. Agustin, G.R. No. 13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226,
November 17, 1933). But serious assault upon agent of a person in authority while engaged in the
performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904;
U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).
Simple assault (such as punching) upon a person in authority (e.g. mayor or chief of police)
while engaged in the performance of duty constitutes qualified direct assault. The law does not
distinguish between serious and simple “laying of hands” upon a person in authority as a
qualifying circumstance. Hence, a simple laying of hands upon a person in authority constitutes
qualified direct assault. The Tabiana principle is only applicable if the victim is an agent of a
person in authority (U.S. vs. Gumban, G.R. No. 13658, November 9, 1918).
If the person in authority or his agent is engaged in the actual performance of duties at
the time of the assault, the motive for the assault is immaterial. Direct assault is committed even
if the motive (such as non-payment of loan) was totally foreign to victim’s official function
(Sarcepuedes vs. People, G.R. No. L-3857, October 22, 1951).
The phrase "on occasion of such performance" used in Article 148 of RPC means "by
reasonof the past performance of official duty because the purpose of the law is to allow them to
discharge their duties without fear of being assaulted by reason thereof (People vs. Renegado,
G.R. No. L-27031, May 31, 1974). Attacking a judge on the street by reason of past performance
of duty (such as citing the accused in contempt) constitutes qualified direct assault (U.S. vs. vs.
Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired judge by reason of past
performance of duty is not direct assault since he is not a person in authority at the time of the
assault. Note: The mandatory retirement age of a judge is 70 year.
The status of lawyer as persons in authority remains even the assault is committed outside
the court room as long as it is perpetrated by reason of the performance of their professional
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duties (Records of the Batasan, Volume Four, 1984-1985 of BP Blg. 873, which amended Article
152 of RPC).
Attacking a third person who comes to the aid of a person in authority, who is a victim of
direct assault, is liable for direct assault upon an agent of a person in authority. Attacking a third
person who comes to the aid of an agent of person in authority, who is a victim of direct assault,
is liable for indirect direct assault. Attacking a third person who comes to the aid of an agent of
person in authority, who is a victim of simple resistance, is liable for physical injuries.
Slapping and pushing a public-school teacher, a person in authority, against a wall
divider, while engaged in the performance of duty is direct assault. Accused initiated her tirades
against the teacher. The fact that the teacher retaliated by similar verbal invectives against the
accused, does not mean that she as a person in authority already descended to the level of a
private person. If the victim suffered abortion, the offender is liable for complex crime of direct
assault with unintentional abortion since single act of assaulting a person in authority constitutes
two crimes. However, in this case, the prosecution failed to prove that the proximate cause of the
abortion is the commission of direct assault since no doctor, who examined her, was not presented
as witness to testify on the causal connection between the two (Gelig vs. People, G.R. No. 173150
July 28, 2010).
Treacherously killing the mayor while in the performance of his duty constitute a complex
crime of direct assault with murder. (People vs. Siega, G.R. No. 213273, June 27, 2018)
53. Evasion - In evasion of service of sentence, the accused must be a convicted prisoner
and not merely a detention prisoner. In delivery of prisoner from jail, the person, who escaped
through the help of the accused, is either a detention prisoner or convicted prisoner. In infidelity
in the custody of prisoner, the person, who escaped in connivance with or consent of or through
negligence of the accused-custodian, is either a detention prisoner or convicted prisoner. Evasion
in the service of sentence and delivery of prisoner from jail are committed by means of dolo.
Infidelity in the custody or prisoner is committed by means of dolo or culpa; if this crime is
committed by means of dolo, it is called conniving with or consenting to evasion; if committed by
means of culpa, it is called evasion through negligence.
Brother of a detention prisoner and convicted prisoner bribed the clerk of court to falsify
release order and their custodians to release his brothers. Convicted prisoner but not the
detention prisoner is liable for evasion of service of sentence. Brother and clerk of court are liable
for delivery of prisoner from jail with respect to the escape of detention prisoner and convicted
prisoner. Custodians are liable for infidelity in the custody of prisoners with respect to the escape
of detention prisoner and convicted prisoner. Brother is liable for two counts of corruption of
public officer. Clerk of court and custodians are liable for direct bribery. Clerk of court and brother
are liable for falsification of document as principal by direct participation and as principal by
inducement, respectively.
54. Bribery - Plaintiff gave money to the judge, who in consideration thereof subsequently
rendered an unjust decision in favor of the former. The judge is liable of direct bribery and
rendering unjust decision, while the plaintiff is liable of corruption of public officer. But if the
plaintiff gave money to the judge, who subsequently rendered a decision against the former, the
crime committed by the judge is indirect bribery while the plaintiff is liable of corruption of public
officer. The judge is not liable of direct bribery since rendering a decision against the corruptor
indicates that the former did not receive the money in consideration of rendering a decision in
favor of the latter. It seems that the plaintiff merely gave the money to the judge by reason of his
position as such.
55. Abortion and infanticide – If the fetus is killed inside the womb of his mother, the
crime is abortion regardless of whether he is viable or not (People vs. Paycana, Jr. G.R. No.
179035, April 16, 2008; People vs. Salufrania, G.R. No. L-50884, March 30, 1988). If the victim
is killed outside the womb of the mother, the crime is: (1) abortion if the victim is not viable e.g.
intrauterine life is only 6 months (People vs. Detablan, 40 O.G. No. 9, p. 30; People vs. Paycana,
Jr. G.R. No. 179035, April 16, 2008); or (2) infanticide, if the victim is viable e.g. his intrauterine
life is more than 6 months and his life is less than 3 day old; or (3) murder if the victim is viable
and his life is 3 day old or more.
If the accused maltreated his wife and as a consequence, his wife and unborn child died,
the crime committed is compound crime of parricide and unintentional abortion (People vs.
Robinos, G.R. No. 138453, May 29, 2002; People vs. Villanueva, G.R. No. 95851, March 01, 1995).
If the accused maltreated his pregnant wife and as a consequence, his wife died, and his child
was expelled, and died thereafter within 3 days, the crime committed is compound crime of
parricide and infanticide. If the accused maltreated his pregnant wife and as a consequence, his
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wife died, and his child was expelled, and died thereafter on the third day, the crime committed
is compound crime of double parricides.
In abortion and infanticide, concealment of dishonor is a special mitigating circumstance
that can be appreciated in favor of the mother and maternal grandparents but not in favor of the
father or fraternal grandparents.
56. Parricide - In parricide, if the victim is his parent or child, the relationship can either
be legitimate or illegitimate; if the victim is the spouse, grandparent or grandchild, the relationship
must be legitimate (People vs. Gamez, GR No. 202847, October 23, 2013). Relationship in parricide
is by blood except where the victim is spouse (Regalado). The qualifying circumstance of
relationship in parricide is personal. Hence, it can be appreciated against the wife but not against
a co-conspirator, who is not related to her husband, the victim (People vs. Bucsit G.R. No. 17865,
March 15, 1922).
57. Death under exceptional circumstance -Death under exceptional circumstance is a
not crime but a defense (People vs. Puedan, G.R. No. 139576, September 2, 2002), or an
absolutory cause (People vs. Talisic, G.R. No. 97961, September 05, 1997) since instead of
imposing the penalty for parricide, murder or homicide, the accused shall only suffer destierro,
which is just a measure designed to protect accused from acts of reprisal principally by relatives
of the victim (People vs. Araquel, G.R. No. L-12629, December 9, 1959). Hence, death under
exceptional circumstance is not a felony within the contemplation of Article 4 (People vs. Abarca,
G.R. No. 74433, September 14, 1987) and aggression under exceptional circumstance is not an
unlawful aggression within the contemplation of self-defense (US vs. Merced, G.R. No. 14170,
November 23, 1918).
Under Article 423 of the old Penal Code, death under exceptional circumstance is
committed if the husband surprised his wife in the act of adultery (en adulterio a su mujer).
Adultery under this Code is committed by a “married woman” who shall have sexual intercourse
with a “man” not her husband. The Revised Penal Code extended the benefit of the original Article
423 of the Penal Code to both husband and wife, and for this reason, the phrase “in the act of
adultery” was changed to “in the act of committing sexual intercourse.” (Opinion of Justice Laurel
in People v. Gonzales, G.R. No. 46310, October 31, 1939) Thus, the phrase “in the act of committing
sexual intercourse” in Article 247 of the Revised Penal Code should be interpreted within the
Spanish context of adulterio, which excludes homosexual intercourse between a wife and another
woman.
A wife, who killed her husband after having surprised him in the act of sodomizing a gay,
is liable for parricide. This is not death under exceptional circumstance since “sodomizing” is not
within the contemplation of the term “sexual intercourse” in Article 247. However, passion may
be appreciated as a mitigating circumstance.
Killing his mistress after surprising in the act of committing sexual intercourse with a man
is not death under exceptional circumstance (U.S. vs. Versola, G.R. No. 10759, January 25, 1916).
The offender in Article 247 must be a “legally married person.” Killing his wife under the
circumstance indicating that she had just finished having sexual intercourse with another man
is not death under exceptional circumstance. He did not catch his wife in the very act of sexual
intercourse, but after such act (People vs. Gonzales, G.R. No. 46310, October 31, 1939).
Accused saw his wife was rising up with a man, who was standing and buttoning his
drawers. Completely obfuscated, accused killed his wife. The circumstance indicates that she had
just finished having sexual intercourse with another man. This is not death under exceptional
circumstance since he did not catch his wife in the very act of carnal intercourse, but after such
act. (People v. Gonzales, G.R. No. 46310, October 31, 1939).
A married woman and her paramour entered a room alone in a motel. Thereafter, they
undressed themselves and performed actual acts of lascivious character. The husband, who
caught his wife and her paramour in that act, killed his wife. Applying the Gonzalez principle,
this is not parricide under exceptional circumstance because the husband did not surprise his
wife in the very act of sexual intercourse with her paramour. Other view – According to the
dissenting opinion of Justice Laurel in the Gonzalez case, these are death under exceptional
circumstance. The offended husband need not look on in the meantime and wait until the very
physical act of sexual intercourse takes place to receive the benefit of provision on death under
exceptional circumstance.
A married woman and her paramour videoed themselves while they are having sexual
intercourse. After a month, the husband saw the sex video of his wife with her paramour. Out of
extreme jealousy, the husband immediately killed his wife. Applying the Gonzalez principle, this
is not parricide under exceptional circumstance since the husband did not surprise his wife in
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the very act of sexual intercourse with her paramour. However, the commission of parricide is
attended by ordinary mitigating circumstance of passion.
58. Death in a tumultuous affray - The elements of Death Caused in a Tumultuous
Affray are as follows: (a) that there be several persons; (b) that they did not compose groups
organized for the common purpose of assaulting and attacking each other reciprocally; (c) that
these several persons quarreled and assaulted one another in a confused and tumultuous
manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained
who actually killed the deceased; and (f) that the person or persons who inflicted serious physical
injuries or who used violence can be identified.
There is tumultuous affray when several persons quarrel and assault each other in a
confused and tumultuous manner provided that they are not composed of groups organized for
the common purpose of reciprocally assaulting and attacking each other. (Article 251) Tumultuous
affray is also called as rumble or free-for-all fight.
The provision of death caused in tumultuous affray is a 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 whether those of employed violence against the deceased
committed murder or homicide, or merely physical injuries, he will be punished for death caused
in a tumultuous affray with the penalty lighter than that prescribed for murder or homicide but
graver than that for physical injuries as a form of compromise.
In Wacoy vs. People, G.R. No. 213792, June 22, 2015, a tumultuous affray takes place
when a quarrel occurs between several persons and they engage in a confused and tumultuous
affray, in the course of which some person is killed or wounded and the author thereof cannot be
ascertained.
There were only two (2) persons, who picked on one defenseless individual and attacked
him repeatedly, taking turns in inflicting punches and kicks on the poor victim. There was no
confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression in that fateful
incident. Since assailants were even identified as the ones who assaulted the victim, the latter's
death cannot be said to have been caused in a tumultuous affray.
59. Rape – Considering that only two persons are usually involved in rape cases, even the
lone uncorroborated testimony of the victim is enough to prove the crime as charged, as long as
the testimony is clear, positive and probable. In rape committed by a father against his own
daughter, the father's parental authority and moral ascendancy over his daughter substitutes for
violence and intimidation. (People vs. Clemento, G.R. No. 215202, March 14, 2018)
a. Absorption rule - If the accused commits rape and acts of lasciviousness, the latter is
absorbed by the former (People vs. Dy, G.R. Nos. 115236-37, January 29, 2002). But the doctrine
of absorption is not applicable to rape through sexual assault. Inserting lighted cigarette into the
genital orifice and anal orifice of the victim and raping her constitutes two counts of rape by
sexual assault and rape through sexual intercourse (People vs. Crisostomo, GR No. 196435,
January 29, 2014, ). Inserting the penis into the mouth of the victim and into her genital orifice
constitutes rape through sexual assault and organ rape (In People vs. Espera, G.R. No. 202868,
October 02, 2013).
c. Variance rule - If the crime charged is rape, but the crime proven is acts of
lasciviousness, the accused will be convicted of the latter because of the variance rule. Acts of
lasciviousness is a lesser crime, which is necessarily included in the charge of rape. If the crime
charged is rape through sexual intercourse, but the crime proven is rape through sexual assault,
the accused cannot be convicted of the latter. The variance rule is not applicable since rape
through sexual assault is not necessarily included in the charge of rape through sexual
intercourse. The elements of these two crimes are materially and substantially different. In such
case, the accused will be convicted of acts of lasciviousness, which is necessarily included in the
charge of rape through sexual intercourse (People vs. Pareja, GR No. 202122, January 15, 2014;
People vs. Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R. No. 183652,
February 25, 2015).
The evidence of the prosecution failed to establish that Edwin had carnal knowledge of
AAA (4 years old). Michael's testimony did not show that Edwin had carnal knowledge with AAA.
He only testified that he saw Edwin holding AAA's vagina. Under the variance doctrine, even
though the crime charged against the accused was for rape through carnal knowledge, he can
be convicted of the crime of acts of lasciviousness committed against a child subjected to sexual
abuse under 12 years of age under the Revised Penal Code in relation to RA No. 7610 without
violating any of his constitutional rights because said crime is included in the crime of rape
(People vs. Dagsa, G.R. No. 219889, January 29, 2018).
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Accused touched AAA's vagina by using his middle finger, which was then fully covered
by a panty and a short pants. He ceasing therefrom when AAA swayed off his hand. There being
no actual insertion of accused's finger into AAA's vagina, he cannot be held liable for
consummated rape by sexual assault. Neither is he liable for attempted rape through sexual
assault since his acts cannot be interpreted as demonstrating an intent to actually insert his
finger inside her sexual organ. However, the accused can only be held guilty of the lesser crime
of acts of lasciviousness. (Lutap vs. People, G.R. No. 204061, February 05, 2018)
c. Withdrawal of consent - Where the woman consents, but then withdraws her consent
before penetration, and the act is accomplished by force, it is rape. (People v. Butiong, G.R. No.
168932, October 19, 2011) But if the woman tacitly consents to have sexual intercourse with the
accused, but then withdraws her consent in the course of sexual intercourse because she felt
pain, and the act is not rape. It would be unfair to convict a man of rape committed against a
woman who, after giving him the impression thru her unexplainable silence of her tacit consent
and allowing him to have sexual contact with her, changed her mind in the middle and charged
him with rape (People vs. Tionloc, G.R. No. 212193, February 15, 2017).
d. Stealthing - Where a woman offers to allow a man to have intercourse with her on
certain conditions and he refuses to comply with the conditions, but accomplishes the act
without her consent, he is guilty of rape. (People v. Butiong, supra)
Stealthing is the removal of condom by the man during sex without consent of the woman.
In Germany, stealthing is a crime, which is different and distinct from rape. In sum, stealthing
under German Law is not within the contemplation of the word “rape.”
In our country, there is no crime of stealthing in the book of statutes. Moreover, stealthing
is not equivalent to rape since lack of consent as an element of this crime pertains to sex and
not to the removal of the condom. Nullum crimen, nulla poena sine lege. However, if the woman
expressly and categorically required the use of condom as a condition to sex, and made it clear
that she would not give her consent to a sexual intercourse without a condom, stealthing may
constitute fraudulent machination, which is a mode of committing rape. But absolute lack of
consent must be shown to make the man liable for rape through fraudulent machination. If the
woman failed to resist the continued sex, or register a strong objection upon knowing that the
man already removed the condom from his penis, rape must be ruled out. Rape is a serious
crime punishable by reclusion perpetua. Hence, the acts committed by the accused must be
clearly within the contemplation of the statute on rape; otherwise, he must be acquitted of rape
based on the pro reo principle.
e. Tenacious resistance - Among the amendments of the law on rape introduced under
RA No. 8353 is Section 266-D, which provides “Any physical overt act manifesting resistance
against the act of rape in any degree from the offended party, or where the offended party is so
situated as to render her/him incapable of giving valid consent, may be accepted as evidence in
the prosecution rape” (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators
agreed that Article 266-D is intended to soften the jurisprudence on tenacious resistance (People
vs. Dulay, G.R. Nos. 144344-68, July 23, 2002). Indeed, failure to offer tenacious resistance does
not make the submission by the victim to the criminal acts of the accused voluntary. What is
necessary is that the force employed against her be sufficient to consummate the purpose which
he has in mind (People vs. Olesco, G.R. No. 174861 April 11, 2011; People vs. Nachor, G.R. No.
177779, December 14, 2010). Failure to shout should not be taken against the victim (People vs.
Rivera, GR No. 200508, September 04, 2013; People vs. Rubio, G.R. No. 195239, March 7, 2012;
People vs. Penilla, GR No. 189324, March 20, 2013). It is not necessary for the victim to sustain
physical injuries. She need not kick, bite, hit or scratch the offender with her fingernails to prove
that she had been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004). Well-settled
is the rule that where the victim is threatened with bodily injury, as when the rapist is armed
with a deadly weapon, such as a pistol, knife, ice pick or bolo, such constitutes intimidation
sufficient to bring the victim to submission to the lustful desires of the rapist (G.R. No. 176740
June 22, 2011, People v. Dumadag).
Force as an element of rape need not be irresistible. Intimidation is addressed to the
mind of the victim. It must be viewed in light of the woman's perception and judgment at the
time of the commission of the crime. It is therefore enough that it produces fear that if the
victim does not yield to the bestial demands of the accused, something would happen to her.
Intimidation includes the moral kind as the fear caused by threatening the girl with a knife or
pistol. (People vs. Bayanat, G.R. No. 215749, March 14, 2018)
f. Qualifying circumstance - If the relationship between the accused and the victim of
rape is uncle and niece, the Information must allege that the offender is “a relative by
consanguinity or affinity within the third civil degree” because there are niece-uncle relationships
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which are beyond the third civil degree. However, a sister-brother relationship is obviously in the
second civil degree. Consequently, it is not necessary that the Information should specifically
state that the accused is a relative by consanguinity within the third civil degree of the victim
(People vs. Ceredon, G.R. No. 167179, January 28, 2008).
Knowledge of the mental disability of the victim is not an element of rape (People vs.
Caoile, GR No. 203041, June 5, 2013) but it is an ingredient of the qualifying circumstance of
mental disability, which must be alleged in the information (People vs. Obogne, GR No. 199740,
March 24, 2014; People vs. Lascano, G.R. No. 192180, March 21, 2012; People v. Madeo, G.R.
No. 176070 October 2, 2009, )
In qualifying circumstances of minority and relationship in rape and special aggravating
circumstance in sexual abuse under RA No. 7610, the guardian must be a person who has legal
relationship with his ward. He must be legally appointed was first (People vs. Flores G.R. No.
188315, August 25, 2010).
g. Marital rape - Husband can be held liable for marital rape. Article 266-A of RPC uses
the term “man” in defining rape without regard to the rapist’s legal relationship with his victim.
Under Article 266-C of RPC, in case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party shall extinguish the criminal action. RA No. 8353
has eradicated the archaic notion that marital rape cannot exist because a husband has absolute
proprietary rights over his wife’s body and thus her consent to every act of sexual intimacy with
him is always obligatory or at least, presumed (People vs. Jumawan, G.R. No. 187495, April 21,
2014).
h. Pruna guidelines - The Pruna guidelines in appreciating age, either as an element of
the crime or as a qualifying circumstance, are as follows.
1. The best evidence to prove the age of the offended party is an original or certified true
copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date of birth of the victim would suffice
to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or
destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or
a member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is
that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is
that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice
provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The
failure of the accused to object to the testimonial evidence regarding age shall not be taken
against him.
6. The trial court should always make a categorical finding as to the age of the victim
People vs. Albalate, G.R. No. 174480 December 18, 2009).
i. Maria Clara rule - The Maria Clara or women’s honor doctrine is a standard used by
the court in assessing the credibility of a rape victim. Under this principle, women of decent
repute, especially Filipinos, would not publicly admit that she has been sexually abused, unless
that is the truth, for it is her natural instinct to protect her honor. However, the factual setting
in 1960 when the "women's honor" doctrine surfaced in our jurisprudence is that it is natural
for a woman to be reluctant in disclosing a sexual assault. However, the women today have over
the years transformed into a strong and confidently intelligent and beautiful person, willing to
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fight for her rights. Thus, in assessing the credibility of a rape victim, the Maria Clara standard
should not be used. The testimony of the victim must be evaluated without gender bias or
cultural misconception. It is important to weed out the Maria Clara notions because an accused
may be convicted solely on the testimony of the victim (People vs. Amarela, G.R. Nos. 22564243, January 17, 2018).
However, in People vs. Cabilida, G.R. No. 222964, July 11, 2018, the Supreme Court said
that a woman will not expose herself to the humiliation of a trial, with its attendant publicity
and the morbid curiosity it would arouse, unless she has been truly wronged and seeks
atonement for her abuse. The Cabilida doctrine is accordant with the Maria Clara principle.
This writer agreed with Cabilida case. A Filipina would not just let the doctor to examine
her pudendum to support her charge of rape, and allow counsel to ask questions on how she
was undressed, her position when the penis of the accused was inserted into her vagina, and
other uncomfortable topics if she is not a really a victim of rape.
j. Criminal touching - Touching of either labia majora or labia minora of the pudendum
of the victim by an erect penis of the accused capable of penetration consummates the crime
(People vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932,
October 19, 2011). Touching the labia by instrument or object (such as tongue or finger) also
consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No. 188897,
June 6, 2011).
If the offender touches the body of the victim through force, without touching the labia of
her pudendum but with clear intention to have sexual intercourse, the crime committed is
attempted rape. Intent to have sexual intercourse is present if is shown that the erectile penis of
the accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014)
or the accused actually commenced to force his penis into the victim's sexual organ (People vs.
Banzuela, G.R. No. 202060, December 11, 2013).
For there to be an attempted rape, the accused must have commenced the act of
penetrating his sexual organ to the vagina of the victim but for some cause or accident other than
his own spontaneous desistance, the penetration, however, slight, is not completed (People vs.
Bandril, G.R. No. 212205, July 06, 2015).
If the offender touches the body of the victim through force, with lewd design but without
clear intention to have sexual intercourse, the crime committed is acts of lasciviousness. Kissing
and undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her
vagina by the hand of the accused (People vs. Banzuela, G.R. No. 202060, December 11, 2013),
touching the breast and thighs of victim and kissing her (People vs. Victor, G.R. No. 127904,
December 05, 2002); or rubbing his penis on the mons pubis of the pudendum (People vs.
Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts of lasciviousness because intent
to have sexual intercourse is not clearly shown, but lewd design is established.
In People vs. Dadulla, G. R. No. 172321, February 9, 2011, the accused's act of opening
the zipper and buttons of AAA's shorts, touching her, and trying to pull her from under the bed
manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent to
lie with AAA motivated the accused was plainly wanting, therefore, rendering him guilty only of
acts of lasciviousness
In Cruz vs. People, G.R. No. 166441, October 08, 2014, touching her genitalia with his
hands and mashing her breasts are "susceptible of double interpretation." These circumstances
may show that the intention of the accused is either to commit rape or simple seduction (or acts
of lasciviousness). Since intent to have sexual intercourse is not clear, accused could not be held
liable for attempted rape. Hence, he is only liable for acts of lasciviousness.
If the offender touches the body of the victim without lewd design or without clear intention
to satisfy lust, the crime committed is unjust vexation.
In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November 29, 1967, accused kissed
and embraced his co-teacher while the latter was conducting her class. The factual setting,
i.e., a schoolroom in the presence of complainant's students and within hearing distance of her
co-teachers, rules out a conclusion that the accused was actuated by a lustful design. The crime
committed is merely unjust vexation.
In People vs. Sumingwa, G.R. No. 183619, October 13, 2009, embracing, dragging and
kissing in front of her friend constitute unjust vexation.
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60. Perjury - Person cannot be held liable for perjury involving a complaint affidavit for
theft based on the execution of affidavit of desistance. There is no perjury solely on the basis of
two contradictory statements. The prosecution must additionally prove which of the two
statements is false and must show the statement to be false by evidence other than the
contradictory statement (U.S. vs. Capistrano 40 Phil. 902; Masangkay vs. People, G.R. No.
164443, June 18, 2010).
In a verified answer, accused denied the allegation in the complaint for collection on his
loan obligation. He is not liable for perjury since verification is not required in answer in a civil
case. He cannot be prosecuted for perjury on the basis of an alleged falsehood made in a verified
pleading, which is not mandated by law to be verified (Saavedra, Jr. vs. Department of Justice,
G.R. No. 93178, September 15, 1993; Flordelis vs. Himalaloan, G.R. No. L-48088, July 31, 1978).
The fact that subornation of perjury is not expressly penalized in RPC does not mean that
the direct induction of a person by another to commit perjury has ceased to be a crime, because
said crime is fully within the scope of provision on principal by inducement (People vs. Pudol,
G.R. No. 45618, October 18, 1938).
Making untruthful statement (failure to disclose previous criminal conviction) in a sworn
application for the patrolman examination constitutes perjury (People vs. Cruz, 108 Phil. 255).
Making untruthful statement (failure to disclose pending criminal case) in unsworn PDS
constitutes falsification of document (Sevilla vs. People, G.R. No. 194390, August 13, 2014). If
there are several mistakes the PDS including those which are not important, accused cannot be
convicted of falsification of document since it appears that failure to disclose pending criminal
case is not deliberate. Hence, accused is only liable for reckless imprudence resulting in
falsification (Sevilla vs. People, supra).
Making it appears that a person participated in an act or proceeding where in fact he did
not is not the actus reus in perjury. Hence, a mayor, who made it appear that affiants swore and
signed the affidavit before him where in fact they did not, is liable of falsification of document and
not perjury (Lonzanida vs. People, G.R. Nos. 160243-52, July 20, 2009).
61. Falsification – Prosecution need not identify a specific law under which the accused
has the obligation to disclose the truth. To convict the accused for falsification of document
involving making an untruthful statement, what is important is that he has a legal obligation to
disclose the truth. In Manansala vs. People, G.R. No. 215424, December 9, 2015, the accused
made an untruthful statement in petty cash replenishment report of a private corporation. The
accused was convicted of falsification of private document because he has a legal obligation to
disclose the truth in a report.
Commercial documents such as promissory note and check are, in general, documents or
instruments which are "used by merchants or businessmen to promote or facilitate trade or credit
transactions (Tanenggee vs. People, G.R. No. 179448 June 26, 2013).
Falsification of a public document is consummated upon the execution of the false
document. What is punished in falsification of public document is principally the undermining of
the public faith and the destruction of truth as solemnly proclaimed therein. The fact that accused
did not benefit from, or that the public was not prejudiced by the falsified resolution is not a
defense (Goma vs. CA, G.R. No. 168437, January 08, 2009).
When the offender commits falsification of public, official or commercial document as a
necessary means to commit malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934),
estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of
Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs. People, G.R. No. 127327,
February 13, 2009, Tanenggee vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs.
Salonga, G.R. No. 131131, June 21, 2001), the crime committed is complex crime proper under
Article 48 of RPC.
When the offender commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to commit another crime like
estafa, theft or malversation, the two crimes form a complex crime proper (Tanenggee vs. People,
G.R. No. 179448 June 26, 2013).
The falsification of a public, official, or commercial document may be a means of
committing estafa, because before the falsified document is actually utilized to defraud another,
the crime of falsification has already been consummated, damage or intent to cause damage not
being an element of the crime of falsification of public, official or commercial document. In other
words, the crime of falsification has already existed. Actually utilizing that falsified public, official
or commercial document to defraud another is estafa. But the damage is caused by the
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commission of estafa, not by the falsification of the document. Therefore, the falsification of the
public, official or commercial document is only a necessary means to commit estafa (Tanenggee
vs. People, G.R. No. 179448 June 26, 2013; People v. Go, G.R. No. 191015, August 6, 2014).
Presenting to the complainant a falsified BIR receipt to make it appears that accused paid
the capital gains tax for the real property bought by the former constitutes complex crime of
estafa through falsification of document (Pascual vs. People, G.R. No. 204873, July 27, 2016).
When the offender commits falsification of public, official or commercial document as a
means to conceal malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978;
People vs. Villanueva, G.R. No. 39047, October 31, 1933, En Banc), estafa (People vs. Monteverde,
G.R. No. 139610, August 12, 2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or
theft, the crimes are separate. This is not complex crime proper since one is not a necessary
means to commit another.
If the falsification of a private document (demand letter, letter of guarantee) is
committed as a means to commit estafa, the crime committed is falsification only. Under the
common element doctrine, the use of damage as an element in falsification of private document
precludes the re-use thereof to complete the elements of estafa. Hence, estafa is not committed
because the element of damage is not present (Batulanon vs. People, G.R. No. 139857, September
15, 2006); U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L34516, November 10, 1931). There is no complex crime of estafa through falsification of private
document.
If a person commits falsification of private document to conceal estafa, the crime is estafa
only. Under the common element doctrine, the use of damage as an element in estafa precludes
the re-use thereof to complete the elements of falsification. Hence, estafa is not committed
because the element of damage is not present (See: People vs. Beng, 40 O.G. 1913).
In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015, the Governor caused the
falsification of private letter requesting for financial assistance. He was able to use this falsified
private document to release public funds to a fictitious beneficiary. Applying Article 48, since
falsification of private document is a necessary means to commit malversation, he is liable for
complex crime of malversation through falsification of private document.
The Supreme Court in Zoleta did not apply the doctrine of “common element.” It should
be noted that damage is not an element of malversation; hence, there is no element common to
malversation and falsification of private document.
62. Malversation - For purpose of malversation, national officer shall be considered as an
accountable officer if he has custody or control of public property by reason of the duties of his
office (Government Auditing Code of the Philippines. The Local Government Code expanded the
concept of accountable local officer. Local officer shall be considered as an accountable officer if
he has possession or custody of local government funds because of the nature of their functions
such a treasure or has participated in the use or application of thereof (Zoleta vs. Sandiganbayan,
G.R. No. 185224, July 29, 2015) such as a mayor, whose signature is needed to disburse
municipal funds (Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February 08, 2012).
Malversation is committed either intentionally or by negligence. The dolo or the culpa is
only a modality in the perpetration of the felony. Even if the mode charged differs from the mode
proved, the same offense of malversation is still committed (Mesina vs. People, G.R. No. 162489,
June 17, 2015).
63. Failure to render an accounting - In People vs. Lumauig, G.R. No.166680, July 7,
2014, the accused received cash advance for payment of the insurance coverage of motorcycles
purchased by the Municipality in 1994. Under COA Circular, accused is required to liquidate the
same within 20 days after the end of the year or on or before January 20, 1995. To avoid criminal
liability under Article 218 of the Revised Penal Code, he must liquidate the cash advance within
two months from January 20, 1995 or on or before March 20, 1995. The accused was liable for
failure to render account because it took him over six years before settling his accounts. Demand
before an accountable officer is held liable for a violation of the crime is not required. Article 218
merely provides that the public officer be required by law and regulation to render account.
Same as in malversation, the offender in failure to render accounting under Article 218
of RPC is also an accountable officer (People vs. Lumauig, G.R. No.166680, July 7, 2014, ). If an
accountable officer misappropriated the cash advance that he received, the crime committed is
malversation (People vs. Icdang, G.R. No. 185960, January 25, 2012; People vs. Devalos, G.R.
No. 145229, April 20, 2006). However, if an accountable officer did not misappropriate the cash
advance since he was able to account the same, but the accounting was delayed for more than
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two months after such accounts should be rendered, the crime committed is failure to render an
accounting (People vs. Lumauig, supra).
Same as in malversation, return of the money in the amount in which the accountable
officer failed to render an accounting is a mitigating circumstance analogous to voluntary
surrender (People vs. Lumauig, G.R. No.166680, July 7, 2014, ).
64. Estafa –In offenses against property (theft or estafa), if the subject matter of the offense
is generic and not identifiable (e.g. money), an error in the designation of the offended party is
fatal. However, if the subject matter of the offense is specific and identifiable (e.g. check or
jewelry), an error in the designation of the offended party is immaterial (Senador vs. People, G.R.
No. 201620, March 06, 2013). In oral defamation, a crime against honor, the identity of the person
against whom the defamatory words were directed is a material element. Thus, an erroneous
designation of the person injured is material (People vs. Uba, 106 Phil. 332).
Demand is not an element of estafa through misappropriation. Demand is only important
if there is no direct evidence of misappropriation because failure to account for the property in
trust upon demand is circumstantial evidence of misappropriation. In this connection, verbally
inquired about the money entrusted to the accused is tantamount to a demand (Asejo vs. People,
G.R. No. 157433, July 24, 2007; (People v. Go, G.R. No. 191015. August 6, 2014, ). On the other
hand, demand is not necessary where there is direct evidence of misappropriation (People vs.
Arambulo, G.R. No. 186597, June 17, 2015; (People v. Go, G.R. No. 191015. August 6, 2014, ).
This rule on demand is applicable to malversation (Munib vs. People, G.R. Nos. 163957-58, April
07, 2009).
Where the borrower is importers acquiring goods for resale, goods sold in retail are often
within his custody until they are purchased. This is covered by trust receipt agreement. Failure
to return the unsold good or deliver the proceeds of sale to the bank is estafa in relation to PD
No. 115 (Trust Receipt Law). Where the borrower is engaged in construction, the materials are
often placed under custody of his clients, who can only be compelled to return the materials if
they fail to pay. Since the bank and the contractor know that the return of the materials is not
possible, this is not covered by trust receipt agreement. This transaction becomes a mere loan,
where the borrower is obligated to pay the bank the amount spent for the purchase of the goods.
The accused is not liable for estafa because of the constitutional provision of non-imprisonment
for nonpayment of debts (Yang vs. People, G.R. No. 195117, August 14, 2013).
In other forms of swindling under Article 316, (1) and (2) of RPC, offender made false
representation involving real property and act of ownership such as selling it, which causes
damage to third person. In paragraph 1, the accused represents that he owned the property, while
in paragraph 2, he expressly represents in the deed of conveyance that the property is “free from
encumbrance” (Estrellado-Mainar vs. People, G.R. No. 184320, July 29, 2015) or "como libre".
These words "como libre" in the Spanish Penal Code are deemed incorporated in the RPC (Naya
vs. Abing, G.R. No. 146770, February 27, 2003).
65. Theft - To "take" under theft the Revised Penal Code does not require asportation or
carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015). It is not an indispensable
requisite of theft that a pickpocket should carry, more or less far away, a wallet taken from its
owner (People vs. Mercado, G.R. Nos. L-45471 and L-45472, June 15, 1938).
The term "personal property" in RPC should be interpreted in the context of the Civil Code.
Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law.
Thus, the business of providing telecommunication and the telephone service is a personal
property (Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009). Since asportation is not an
element of theft, a personal property can to be the object of theft as along as it is capable of
appropriation although it is not capable of "asportation" (Medina vs. People, G.R. No. 182648,
June 17, 2015). Intangible property is not capable of asportation, and yet, it can be an object of
theft since is capable of asportation.
If the property is tangible, taking is deemed complete from the moment the offender gains
possession over the thing, even if he has no opportunity to dispose of the same (People vs.
Bustinera, G. R. No. 148233, June 8, 2004). If the property is intangible, taking includes
controlling the destination of this property stolen to deprive the owner of the property (e.g. the
use of a meter tampering, use of a device to fraudulently obtain gas, and the use of a jumper to
divert electricity). Using device to control the destination of international telephone call under the
telecommunication system of PLDT without its consent to earn by charging user of the phone at
the expense of PLDT is taking the property of PLDT of providing telecommunication service (Laurel
vs. Abrogar, supra).
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a. No frustrated theft - If the bulky goods are taken by the accused inside a compound
(such as SM), theft is consummated even if the accused failed to bring out the stolen goods from
the compound, which makes him unable to freely dispose it. Inability to dispose the stolen
property is not an element of theft. Unlawful taking is the element which produces the felony in
its consummated stage. Without unlawful taking, the offense could only be attempted theft, if at
all. Thus, theft cannot have a frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21,
2007). If the accused is charged with frustrated theft, he could not be convicted of the crime
charged because theft has no frustrated stage. Neither could he be convicted of consummated
theft since it was not alleged in the information. But he could be convicted of attempted theft
because this is a lesser crime, which is necessarily included in the charge of frustrated theft
(Canceran vs. People, G.R. No. 206442, July 01, 2015).
b. Qualified Theft - Theft becomes qualified when it is, among others, committed with
grave abuse of confidence. The grave abuse of confidence must be the result of the relation by
reason of dependence, guardianship, or vigilance, between the appellant and the offended party
that might create a high degree of confidence between them which the appellant abused (People
vs. Tanchanco, G.R. No. 177761 April 18, 2012, ).
An employee, who took company property, is liable for qualified theft if the stolen
properties are accessible to him (Zapanta vs. People, G.R. No. 170863, March 20, 2013) because
of the circumstance of abuse of confidence (Yongco vs. People, G.R. No. 209373, July 30, 2014).
Making the property accessible to the employee is an indication that the employer has confidence
on him that he will not steal the property. The employee abused such confidence by stealing it.
If the accused as an employee had no physical access to, or material possession of, the
stolen goods owned by his employer, the qualifying circumstance of abuse of confidence cannot
be appreciated. Making the property non-accessible to the employee is an indication that the
employer has no confidence on him that he will not steal the property (Viray vs. People, G.R. No.
205180, November 11, 2013).
c. Value of the property - The value of jewelry is not a matter of public knowledge nor
is it capable of unquestionable demonstration and in the absence of receipts or any other
competent evidence besides the self-serving valuation (P1 million) made by the complainant, the
courts may either apply the lowest penalty under Article 309 or fix the value of the property
taken based on the attendant circumstances of the case. In this case, the court imposed the
lowest penalty (People vs. Mejares, G.R. No. 225735, January 10, 2018).
d. Lost property - Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner, is liable for theft. If the finder surrenders the property
found to a policeman, who fails to deliver it the owner, the policeman is liable for theft. He acquired
the position occupied by the actual finder. Appropriating the property is of the same character of
that made by one who originally found the same (People vs. Avila, G.R. No. L-19786, March 31,
1923).
66. Theft through misappropriation
a. Physical possession - If the accused received the property with the consent of the
owner but he merely acquired physical possession in doing so, misappropriation shall be
considered as taking without consent; hence, the crime committed is theft (U.S. v. De Vera, G.R.
No. L-16961, September 19, 1921) or qualified theft (People v. Tanchanco, G.R. No. 177761 April
18, 2012, ).
A franchise holder must personally operate the motor vehicle. That is the reason why
government regulation prohibits operator of motor vehicle from leasing it. In the eye of the law
the driver of taxi or passenger jeepneyunder boundary arrangement was only an employee of the
owner rather than a lessee. For being an employee, his possession of the jeepney is physical
(People v. Isaac G.R. No. L-7561, April 30, 1955), and thus, misappropriation thereof is
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).
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In Benabaye vs. People, G.R. No. 203466, February 25, 2015, , a sum of money received
by an employee on behalf of an employer is considered to be only in the material possession of
the employee. The material possession of an employee is adjunct, by reason of his employment,
to a recognition of the juridical possession of the employer. So long as the juridical possession of
the thing appropriated did not pass to the employee-perpetrator, the offense committed remains
to be theft, qualified or otherwise. Hence, conversion of personal property in the case of
an employee having mere material possession of the said property constitutes theft, whereas in
the case of an agent to whom both material and juridical possession have been transferred,
misappropriation of the same property constitutes Estafa.
There is an essential distinction between the possession of a receiving teller of funds
received from third persons paid to the bank, and an agent who receives the proceeds of sales of
merchandise delivered to him in agency by his principal. In the former case, payment by third
persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the
funds received, and has no independent right or title to retain or possess the same as against the
bank. An agent, on the other hand, can even assert, as against his own principal, an independent,
autonomous, right to retain the money or goods received in consequence of the agency; as when
the principal fails to reimburse him for advances he has made, and indemnify him for damages
suffered without his fault.
b. Legal possession - If the accused received the property with the consent of the owner
and he acquired legal possession in doing so by virtue of trust, commission, administration or
obligation involving the duty to make delivery or return such as lease, deposit, commodatum, or
quasi-contract, misappropriation shall be considered as estafa through conversion or
misappropriation (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle vs. People, G.R.
No. 174181, June 27, 2012).
In Cheng vs. People, G.R. No. 174113, January 13, 2016, , complainant delivered the
jewelry to accused for the purpose of selling them on commission basis. Accused was required to
either remit the proceeds of the sale or to return the jewelry after one month from delivery.
Accused failed to do what was required of her despite the lapse of the aforesaid period. The
accused issued a check representing the return of the proceeds of sale, which was dishonored.
However, in testifying on the delivery of the unfunded check, complainant erroneously used the
words "payment" and "paid". The defense argued “receipt of property in trust by reason of agency,”
which is an element estafa through misappropriation is not present since the transaction is sale,
which is established by admission or by using the words “payment” and “paid.” SC rejected the
argument. The erroneous use of the words "payment" and "paid" by the complainant (who does
not know the technical meaning thereof) will not change the nature of her transactions from an
agency to a contract of sale. Hence, accused is liable for estafa through misappropriation.
As a rule, the possession of the employee such as bank teller, collector or cash custodian
is only physical. Hence, misappropriation of property is qualified theft. Abuse of confidence is
present since the property is accessible to the employee (Chua-Burce vs. CA, G.R. No. 109595,
April 27, 2000; People vs. Tanchanco, G.R. No. 177761 April 18, 2012, ). However, if the employee
is an officer of the company with discretion on how to use property or fund of the company to
further its interest, his possession is juridical; hence, misappropriation thereof is estafa. Thus,
the following officers are liable for estafa for misappropriating company property: a. A bank
president who held the money in trust or administration for the bank in his fiduciary capacity
with discretion on how to administer such fund (People vs. Go, G.R. No. 191015, August 6, 2014);
b. A corporate treasurer who received the money for safe-keeping and administration (U.S. vs.
Sevilla, G.R. No. 18056, March 16, 1922; c. A corporate officer with discretion option on how to
use bending machine without the participation of the corporation (D’Aigle vs. People, G.R. No.
174181, June 27, 2012). However, in Remo vs. Devanadera, G.R. No. 192925, December 9, 2016,
the Supreme Court ruled that directors of a corporation have no juridical possession over the
corporate funds.
Misappropriation by the industrial partner of the share of the capitalist partner (People vs.
Clemente, CA, 65 OG 6892) or the partnership fund to be used in buying and selling mango
(People vs. Dela Cruz, G.R. No. 21732, September 3, 1924) is estafa. Theft is not committed (US
vs. Reyes, G.R. No. 2867, September 11, 1906) because possession of the industrial partner over
the same is juridical (People vs. Tan Tay Cuan, CA, 57 OG 6964).
In US vs. Clarin, G.R. No. 5840, September 17, 1910, four individuals entered into a
contract of partnership for the business of buying and selling mangoes. When one of the partners
demanded from the other three the return of his monetary contribution, the Supreme Court ruled
that "the action that lies with the capitalist partner for the recovery of his money is not a criminal
action for estafa, but a civil one arising from the partnership contract for a liquidation of the
partnership and a levy on its assets, if there should be any. Simply put, if a partner demands his
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money back, the duty to return the contribution does not devolve on the other partners; the duty
now belongs to the partnership itself as a separate and distinct personality.
In 1997, a case with circumstances similar to the Clarin case was decided differently.
In Liwanag v. Court of Appeals, G.R. No. 114398 October 24, 1997, three individuals entered into
a contract of partnership for the business of buying and selling cigarettes. They agreed that one
would contribute money to buy the cigarettes while the other two would act as agents in selling.
When the capitalist partner demanded from the industrial partners her monetary contribution
because they stopped informing her of business updates, this time, this Court held the industrial
partners liable for estafa.
In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the Supreme Court ruled that said
the OCP erred gravely when it dismissed the case based on the Clarin case, which has already
been superseded by Liwanag case. Liwanag applies to the partnership agreement executed
between petitioner and respondent. Petitioner's initial contributions were all for specific purposes:
for the buying and selling of garments and for the salaries of the factory workers, respectively.
When respondent failed to account for these amounts or to return these amounts to petitioner
upon demand, there is probable cause to hold that respondent misappropriated the amounts and
had not used them for their intended purposes. The Information for estafa should thus proceed.
Even assuming that a contract of partnership was indeed entered into by and between the
parties, when money or property had been received by a partner for a specific purpose and he
later misappropriated it, such partner is guilty of estafa.
c. Ownership - If the accused received the property with the consent of the owner and
he acquired ownership in doing so by virtue of a contract such as sale, mutuum or loan, failure
to perform obligation under such contract is neither theft nor estafa since the same is purely civil
in character (People vs. Montemayor, G.R. No. L-17449, August 30, 1962).
d. Receiving the property through deceit - If the accused received the property through
deceit but he merely acquired physical possession in doing so, misappropriation shall be
considered as taking without consent; hence, the crime committed is theft (People vs. Maglaya,
L-29243, November 28, 1969, L-29243). If the bank president received bank fund through deceit
by using falsified loan documents with fictitious borrower, and misappropriated the money, he
is liable for complex crime of complex crime of estafa through misappropriation through
falsification of commercial documents. His possession over the funds is legal. He did not acquired
ownership over the property since he is holding the bank fund under trust or administration in
his fiduciary capacity (People vs. Go, G.R. No. 191015, August 06, 2014, ; Soriano v. People, G.R.
No. 162336 February 1, 2010, ). If a bank manager received bank fund through deceit by using
falsified promissory note with fictitious borrower and falsified endorsement on the check issued
by the bank, he is liable for complex crime of estafa through false pretense through falsification
of commercial documents (Tanenggee v. People, G.R. No. 179448, June 26, 2013, ). If a bank
employee stole blank cashier check, falsified the authorized signatory of the check, and received
money from the bank through deceit by presenting the falsified check for encashment, he is
liable for complex crime of qualified theft through falsification of commercial document. Deceit
shall be considered as a continuation and natural development of the theft, which was previously
committed (People vs. Salonga, G.R. No. 131131, June 21, 2001).
The bank president in addition to the charge of estafa by misappropriation through
falsification of document can be charged with DOSRI violation. Under Section 83 of RA 337,
DOSRI violation can committed by officer of the bank by borrowing either directly or indirectly,
from the bank. In this case, the president borrowed indirectly from the bank by making a
fictitious loan (Soriano v. People, G.R. No. 162336 February 1, 2010, ).
66. Syndicate estafa - The elements of syndicated estafa under P.D. No. 1689 are:
1. Estafa or other forms of swindling under Articles 315 to 318 of the Revised Penal Code is
committed;
2. It is committed by a syndicate of five or more persons; and
3. Defraudation results in the misappropriation of moneys contributed by stockholders, or
members of rural banks, cooperative, “samahang nayon,” or farmers’ associations, or of funds
solicited by corporations/associations from the general public. (People v. Tibayan, G.R. Nos.
209655-60, January 14, 2015)
Syndicate
A syndicate is defined as consisting of five or more persons formed with the intention of
carrying out the unlawful or illegal act, transaction, enterprise or scheme. In illegal recruitment,
trafficking in person and child pornography, a syndicate is only composed of at least three
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offenders. In syndicated/organized crime group, a syndicate is composed of at least two
offenders.
In a syndicate, the number of offenders is being considered. On the other hand, in largescale, the number of victims is being considered. Large scale is a qualifying circumstance in
illegal recruitment and trafficking in person but not in estafa or child pornography. There is no
large-scale estafa or large-scale child pornography.
To appreciate syndicate in syndicated estafa, the court shall consider the number of
offenders alleged in the information and proven by evidence, and not the number of accused
charged or convicted (Hao v. People, G.R. No. 183345, September 17, 2014)
In Hao v. People, supra, there are only three accused charged in the Information for
syndicated estafa and yet, the requirement of the existence of syndicate of at least five persons
is considered as satisfied because it was alleged and proven that in addition to the accused,
other officers and directors of the corporation perpetrated fraud against the complainant.
In order for any group to be considered a syndicate under P.D. No. 1689, the perpetrators
of an estafa must not only be comprised of at least five individuals but must have also used the
association that they formed or managed to defraud its own stockholders, members or
depositors. (Home Development Mutual Fund vs. Sagun, G.R. No. 205698, July 31, 2018)
The swindling syndicate used the association that they manage to defraud the general
public of funds contributed to the association. Indeed, PD No. 1689 speaks of a syndicate formed
with the intention of carrying out the unlawful scheme for the misappropriation of the money
contributed by the members of the association. In other words, only those who formed or manage
associations that receive contributions from the general public who misappropriated the
contributions can commit syndicated estafa. (Home Development Mutual Fund vs. Sagun,
supra)
There are three requisites to consider a group of swindlers as a syndicate under PD No.
1689:
1. They must be at least five in number;
2. They must have formed or managed a rural bank, cooperative, "samahang nayon,"
farmer's association or any other corporation or association that solicits funds from the general
public;
3. They formed or managed such association with the intention of carrying out an unlawful
or illegal act, transaction, enterprise or scheme i.e., they used the very association that they formed
or managed as the means to defraud its own stockholders, members and depositors. (Home
Development Mutual Fund vs. Sagun, supra)
In Home Development Mutual Fund vs. Sagun, supra, there are only four officers of Globe
Asiatique charged for syndicated estafa. The fifth respondent, which will complete the
requirement of at least five swindlers in syndicated estafa, is Atty. Alvarez. However, Atty. Alvarez
was officer of HDMF whose only connection with Globe Asiatique was by reason of his having
rendered notarial services for the latter. Since Atty. Alvarez was not related to Globe Asiatique
either by employment or by ownership, he could not be considered as part of the syndicate
supposedly formed or managed to defraud its stockholders, members, depositors or the public.
Hence, respondents should not have been charged with syndicated estafa.
Funds Solicited from the General Public
The fact that the entity involved was not a rural bank, cooperative, samahang nayon or
farmers’ association does not take the case out of the coverage of P.D. No. 1689. The law applies
to other corporations or associations operating on funds solicited from the general public. (People
v. Balasa, G.R. No. 106357, September 3, 1998) Thus, the entity can be a commercial bank.
(Galvez v. Hon. CA, G.R. No. 187919, February 20, 2013)
If the money misappropriated is not solicited from the general public, the crime committed
is simple estafa under the Revised Penal Code. (Hao v. People, supra)
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There are three parties involved in syndicated estafa, to wit: (1) the corporation or
association; (2) general public such as stockholders and members of the association; they are
the victims and (3) the owners and members of the association, who used such association to
defraud the general public; they are the offenders. The association or corporation can neither be
a victim nor the offender in syndicated estafa. The association is just an instrument used by the
offenders to defraud the victim. A bank cannot charge its employees with syndicated estafa for
misappropriating its money. (Galvez v. Hon. CA, supra) The crime committed by a bank employee
or officer is estafa or theft depending upon the nature of their position.
In Home Development Mutual Fund vs. Sagun, G.R. No. 205698, July 31, 2018, based
on evidence, GLOBE ASIATIQUE (GA) allegedly recruited "special buyers," who are not members
of Pag-ibig. For a fee, these “special buyers” would apply membership in Pag-ibig, and then, they
would obtain housing loans from Pag-Ibig but they will not occupy the housing units involved.
Then GA will sell the units to real buyers, who would assume the balance on the loan of the
"special buyer." Because of this complex scheme involving fraudulent buyers, a huge amount of
money was transferred from the coffers of the Pag-ibig fund by HDMF, and released to the GA.
Officers of GA including Delfin Lee were charged of syndicated estafa. In this crime, it must be
established that GA solicited funds from the general public and at least five swindlers used GA
to defraud its members or stockholders. However, in this case, GA did not solicit funds from the
general public. The HDMF, the complainant, was not itself a stockholder or member of GA. It
was the HDMF itself, not GA, that had solicited (Pag-ibig) funds from its members. The funds
supposedly misappropriated did not belong to GA's stockholders or members, or to the general
public, but to the HDMF. Thus, respondents did commit syndicated estafa. However, they should
be charged with simple estafa.
Swindling may fall within the ambit of P.D. No. 1689 if it is committed through an
association. On the other hand, estafa is committed regardless of the number of the accused
when: (a) the entity soliciting funds from the general public is the victim and not the means
through which the estafa is committed, or (b) the offenders are not owners or employees who
used the association to perpetrate the crime. (Home Development Mutual Fund vs. Sagun, supra)
67. Arson – Destructive arson is characterized as heinous crime; while simple arson under
PD No. 1613 is a crime manifesting a lesser degree of perversity. Simple arson contemplates the
malicious burning of property not included in Article 320 of the RPC (People vs. Macabando, GR
No. 188708, July 31, 2013). Burning of inhabited house or dwelling or personal property is simple
arson under Section 3 of P.D. No. 1613 because it is not included in Article 320 of RPC.
If the main objective is to kill the victim in a building, and fire is resorted to as the means
to accomplish such goal, the crime committed is murder only. Murder qualified by means of fire
absorbs arson since the latter is an inherent means to commit the former (People vs. Cedenio,
G.R. No. 93485, June 27, 1994). Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No. 168050, September 19, 2008;
People vs. Mercado, G.R. No. 218702, October 17, 2018)
One has deliberately set fire to a building is presumed to have intended to burn the
building (People vs. De Leon, G. R. No. 180762, March 4, 2009). Since intent to burn is presumed,
intent to kill must be established beyond reasonable doubt. Failure to show intent to kill, the
accused shall be convicted of arson with homicide and not murder (People vs. Baluntong, G.R.
No. 182061, March 15, 2010).
If the main objective is to burn the building, but death results by reason or on the occasion
of arson, the crime is arson with homicide, and the resulting homicide is absorbed (People vs.
Villacorta, 172468, October 15, 2008).
If the objective is to kill, and in fact the offender has already done so, and arson is resorted
to as a means to cover up the killing, the offender may be convicted of two separate crimes of
either homicide or murder, and arson (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
68. Bigamy – After the consummation of the crime of bigamy, declaration of nullity of first
marriage and/or second marriage is not a defense on the following grounds:
First ground - After the consummation of bigamy, subsequent declaration of nullity of the
first and/or the second marriage is not a defense since it is not a mode of extinguishing criminal
liability listed in Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009).
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Bigamy is consummated upon contracting second marriage despite the subsistence of the
first marriage consummates. Once the crime consummates, criminal liability will attach to the
accused and will not be extinguished except through a mode mentioned in Article 89 of RPC as
death, pardon etc. After the consummation of bigamy or celebration of the second marriage, the
criminal liability shall not be extinguished by subsequent events such as declaration of nullity of
marriage not mentioned in Article 89 of RPC.
Second ground - To make declaration of nullity of first marriage and/or second marriage
after the consummation of the crime of bigamy as a defense would render the State’s penal laws
on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape liability for bigamy (Tenebro vs. The
Honorable Court of Appeals, G.R. No. 150758, February 18, 2004; Walter vs. People, GR No.
183805, July 03, 2013).
Third ground - To avoid criminal liability, the declaration of nullity of the first marriage
must be made previous to the consummation of bigamy, which is required by Article 40 of the
Family Code that provides: The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such previous marriage
void. A declaration of the absolute nullity of the first marriage is now explicitly required either as
a cause of action or a ground for defense in bigamy (People vs. Teves, G.R. No. 188775, August
24, 2011). Even though the first marriage was contracted prior to the Family Code, the rule is the
same since Article 40, which is a rule of procedure, should be applied retroactively. The reason is
that as a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs.
People, G.R. No. 164435, June 29, 2010).
Article 40 of the Family Code is only applicable if what is involved is declaration of nullity
of the first marriage. Hence, if what is involved is post-bigamy declaration of nullity of the first
marriage, this is not a defense because of the first, second and third grounds. If what is involved
is post-bigamy declaration of nullity of the second marriage, this is not a defense because of the
first and second grounds.
Post-bigamy declaration of nullity of the first or second marriage is not a defense whether
the ground for nullity is psychological incapacity (Mercado vs. Tan, G.R. No. 137110, August 1,
2000) or lack of license and affidavit of cohabitation (Lasanas vs. People, G.R. No. 159031, June
23, 2014) or even though the declaration is obtained before the filing of the complaint for bigamy
(People vs. Odtuhan, GR No. 191566, July 17, 2013).
Exceptions:
1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079, the second
marriage was celebrated one day before the issuance of the marriage license. In this situation,
the accused can use the voidness of the second marriage as a defense in bigamy. The accused did
not cause the falsification of public documents in order to contract a second marriage. He did not
fraudulently secure a Certificate of Marriage, and later used this criminal act as basis for seeking
her exculpation. The crime committed is not bigamy under Article 349 (Santiago vs. People, G.R.
No. 200233, July 15, 2015) but marriage contracted against the provisions of the law under Article
350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955).
The De Lara principle is only applicable if the two requisites are applicable: (1) the accused
did not did not cause the falsification of public documents in order to contract a second marriage.
As a rule, the accused cannot use the voidness of the second marriage as a defense in bigamy
because she fraudulently secured a certificate of marriage, and that is presenting a falsified
affidavit of cohabitation instead of marriage license (Santiago vs. People, G.R. No. 200233, July
15, 2015); and (2) the second marriage is null and void for lack of marriage license; if the first
marriage is declared null and void due to lack of marriage license or affidavit of cohabitation, this
is not a defense because Article 40 of the Family Code required declaration of nullity before the
celebration of second marriage (Lasanas vs. People, G.R. No. 159031, June 23, 2014).
2. The principle that “one who enters into a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy” is not applicable where the parties merely signed the
marriage contract without marriage ceremony performed by a duly authorized solemnizing
officer. The mere private act of signing a marriage contract bears no semblance to a valid marriage
and thus, needs no judicial declaration of nullity. Hence, bigamy is not committed (Morigo vs.
People, G.R. No. 145226, February 06, 2004).
3. X contracted three marriages. His first wife is already dead when X contracted his third
marriage. X is liable for bigamy involving the second marriage on the basis of his first marriage
because the first was existing when the contracted the second. X is not liable for bigamy involving
the third marriage on the basis of the first marriage since the first has already been extinguished
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by reason of death of the first wife when he contracted the third. X is not liable for bigamy involving
the third marriage on the basis of the second marriage since the second is null and void for being
a bigamous marriage.
In a bigamy case, accused alleged that complainant, his wife, acquired Canadian
citizenship, obtained a divorce, and thereafter, remarried. By raising divorce, it is incumbent upon
the accused to show that it was validly obtained in accordance with complainant's national law
(e.g. Canadian law) prior to the celebration of the second marriage. In this case, accused presented
a certificate of divorce allegedly issued by the registrar of the Supreme Court of British Columbia.
The defense was rejected. First, the divorce decree required to prove the fact of divorce is the
judgment itself as rendered by the foreign court and not a mere certification. Second, assuming
the certificate of divorce may be considered as the divorce decree, it was not accompanied by a
certification issued by the proper Philippine diplomatic or consular officer stationed in Canada,
as required under Section 24 of Rule 132. Lastly, no copy of the alleged Canadian law was
presented by the defense. Thus, it could not be reasonably determined whether the subject divorce
decree was in accord with complainant's national law. Accused was convicted of bigamy. (Sarto
vs. People, G.R. No. 206284, February 28, 2018)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him/her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law. (par. 2 of Article 26 of the
Family Code) This rule includes cases involving parties who, at the time of the celebration of the
marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen
and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the
other party were a foreigner at the time of the solemnization of the marriage. (Republic v. Orbecido
III, G.R. No. 154380, October 5, 2005) However, Orbecido case will not apply if there is no
competent evidence concerning naturalization of the alien spouse and the divorce decree, which
capacitated the alien spouse to remarry. (Sarto vs. People, supra)
69. Illegal marriage – A priest, who performed a marriage ceremony despite knowledge
that the couple had no marriage license, is liable for illegal marriage. The law sets the minimum
requirements constituting a marriage ceremony: first, there should be the personal appearance of
the contracting parties before a solemnizing officer; and second, their declaration in the presence
of not less than two witnesses that they take each other as husband and wife (Ronulo vs. People,
G.R. No. 182438, July 02, 2014).
70. Libel - Under Article 360 of the RPC, the publisher, and editor of newspaper, shall be
responsible for the defamations contained therein to the same extent as if he were the author
thereof. The publisher and editors cannot disclaim liability for libelous articles that appear on
their paper by simply saying they had no participation in the preparation of the same. They cannot
say that Tulfo was all alone in the publication of Remate, on which the defamatory articles
appeared. It is not a matter of whether or not they conspired in preparing and publishing the
subject articles, because the law simply so states that they are liable as if they were the author
(Tulfo vs. People, G.R. No. 161032, September 16, 2008).
Comment is not fair if there is reckless disregard of knowing whether the defamatory
imputation is false or not. Hence, the accused cannot use the fair comment principle as a defense.
In Erwin Tulfo vs. People, G.R. No. 161032, September 16, 2008 - Journalists bear the burden of
writing responsibly when practicing their profession, even when writing about public figures or
matters of public interest. The report made by Tulfo describing a lawyer in the Bureau of Customs
as corrupt cannot be considered as "fair" and "true" since he did not do research before making
his allegations, and it has been shown that these allegations were baseless. The articles are not
"fair and true reports," but merely wild accusations. He had written and published the subject
articles with reckless disregard of whether the same were false or not.
In Manila Bulletin Publishing Corporation vs. Domingo, G.R. No. 170341, July 5, 2017,
the accused published an article where he stated that these national employees should be
commended for bringing into the open this garbage that has piled up in their own backyard. To Joe
Con's successor, the chopping board is ready. All you need is a Muslim kris! Palakulin mo, Pare
ko!. This is not libelous. On the first statement, accused is merely commending the DTI
employees who brought into the open their complaints against the private complainant in this
case, a DTI officer. This is a fair remark. The last three sentences merely meant that heads
should roll at the DTI office, which does not ascribe something deprecating against complainant.
Moreover, the statement does not refer to an ascertained or ascertainable person.
In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a motion for
reconsideration of resolution dismissing a complaint for estafa with irrelevant and defamatory
statement against the investigating prosecutor was filed with the OCP of San Pablo City and copy
furnished to the respondent in the estafa complaint, and the Office of the Secretary of Justice.
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Despite the fact that the motion was contained in sealed envelopes, it is not unreasonable to
expect that persons other than the one defamed would be able to read the defamatory statements
in it. Hence, the element of publicity in libel is present.
In Belen vs. People, G.R. No. 211120, February 13, 2017, accused filed a motion for
reconsideration of resolution dismissing a complaint for estafa. The accused alleged in the said
motion the public prosecutor who dismissed the case is corrupt, stupid, imbecile, mentally
dishonest and bereft of intellectual ability. This is not covered by the absolute privilege
communication rule since the defamatory allegations in the motion are not relevant to the issue
of whether or not the motion for reconsideration should be granted because there is probable
cause to charge the respondent in the preliminary investigation for estafa.
Before Article 360 of RPC was amended, the rule was that a criminal action for libel may
be instituted in any jurisdiction where the libelous article was published or circulated, irrespective
of where it was written or printed. Experience had shown that under that old rule the offended
party could harass the accused in a libel case by laying the venue of the criminal action in a
remote or distant place. To forestall such harassment, RA No. 4363, which amended RPC, lays
down specific rules as to the venue of the criminal action so as to prevent harassment arising
from out-of-town libel suits. (People vs. Macasaet, G.R. No. 196094, March 5, 2018) As a general
rule, venue for libel is either province or city where the libelous article is printed and first published
or where any of the offended parties actually resided at the time of the commission of the offense.
However, if the offended party is a public officer, there is a third optional venue, and that is,
province, city or Manila where he held office at the time of the commission of the offense. In all
cases, the criminal action shall be filed in the Regional Trial Court.
Information alleged that publisher and writer of Malaya with address at Port Area, Manila
City defamed private complainant by writing and publishing a defamatory article in the Malaya.
The Port Area, Manila is the editorial and business offices of Malaya. This is a compliance with
the rule requiring allegation in the information of the place where the alleged defamatory article
was printed and first published. The Information need not parrot the provisions of Article 360 of
the RPC and expressly use the phrase "printed and first published." If there is no dispute that the
place of publication indicated in the Information is the place where the alleged defamatory article
was "printed and first published," then the law is substantially complied with. After all, the filing
of the Information before an RTC of Manila would forestall any inclination to harass the accused.
(People vs. Macasaet, G.R. No. 196094, March 5, 2018)
71. Incriminating an innocent person - As a general rule, planting of evidence to
incriminate an innocent person constitutes the crime of incriminating an innocent person under
Article 363 of RPC. However, if the incriminatory evidence planted is dangerous drugs or
unauthorized explosives, loose firearm or ammunition, the crime committed is planting of
evidence under RA 9165 for the dangerous drug, PD 1866 as amended by RA 9516 for the
explosive and RA No. 10591 for loose firearm.
If unlawful arrest is committed to plant incriminatory evidence, the crime committed is
complex crime of incriminating innocent person through unlawful arrest (People vs. Alagao, G.R.
No. L-20721, April 30, 1966). If incriminatory evidence is planted to justify an unlawful arrest,
the crime committed is complex crime of unlawful arrest through incriminating an innocent
person. But if the incriminatory evidence is dangerous drugs, explosive or loose firearm, unlawful
arrest and planting of evidence are separate crimes. Complex crime is not committed since
planting of evidence, which is punishable under special law, cannot be made a component of a
complex crime.
Stealing property and planting the stolen property to impute to the victim the crime of
theft constitutes complex crime of incriminating an innocent person through theft.
Planting of live bullet by NAIA personnel to extort money from a passenger of an airline
constitutes separate crime of planting of evidence and consummated or attempted robbery.
72. BP 22 – While sourced from the same act, i.e., the issuance of a check subsequently
dishonored, estafa and violation of B.P. Blg. 22 are separate and distinct from each other because
they pertain to different causes of action. The differences between the two are as follows: (1)
Damage and deceit are essential elements for estafa, but are not so for violation under B.P. Blg.
22, which punishes the mere issuance of a bouncing check; (2) under BP Blg. 22, mere issuance
of a check that is dishonored gives rise to the presumption of knowledge on the part of the drawer
that he issued the same without sufficient funds and hence punishable which is not so under the
Penal Code; (3) a drawer of a dishonored check may be convicted under BP Blg 22 even if he had
issued the same for a preexisting obligation, while such circumstance negates criminal liability
for estafa; (4) specific and different penalties are imposed in each of the two offenses; (5) estafa is
essentially a crime against property, while violation of BP Blg 22 is principally a crime against
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public interest as it does injury to the entire banking system; (6) estafa are mala in se, while those
of BP Blg, 22 are mala prohibita. (Batac vs. People, G.R. No. 191622, June 06, 2018)
Settled is the rule that estafa will not lie when the parties waive the negotiable character
of a check, and instead treat the same as proof of an obligation. For instance, when there is an
agreement between the parties at the time of the issuance and postdating of the checks that the
obligee shall not encash or present the same to the bank, the obligor cannot be prosecuted
for estafa because the element of deceit is lacking (People vs. Villanueva, G.R. No. 163662,
February 25, 2015). In BP Blg. 22, the fact that the check is not intended to be encashed or
deposited in a bank is not a defense. This check produces the same effect as ordinary check. What
the law punishes is the issuance of a rubber check itself and not the purpose for which the check
was issued nor the terms and conditions relating to its issuance (Cueme vs. People, G.R. No.
133325, June 30, 2000).
a. Knowledge of the payee - When the payee was informed that the checks are not
covered by adequate funds, bad faith or estafa shall not arise (People vs. Villanueva, G.R. No.
163662, February 25, 2015). In BP Blg. 22, the facts that the payee had knowledge that he had
insufficient funds at the time he issued the check is immaterial as deceit is not an essential
element of the offense under this law. The gravamen of the offense under BP Blg. 22 is the
issuance of a bad check; hence, malice and intent in the issuance thereof are inconsequential
(Rigor vs. People, G.R. No. 144887, November 17, 2004).
b. No account with the bank - According to the accused, she did not own the check that
she issued to complainant as collateral. He merely borrowed it from a friend. What BP Blg.
22 punished was the mere act of issuing a worthless check. The law did not look either at the
actual ownership of the check. The law penalizes a person who indulges in the making and issuing
of unfunded check on an account belonging to another with the latter’s consent. Also, that the
check was not intended to be deposited was really of no consequence to her incurring criminal
liability under BP 22 (Resterio vs. People, G.R. No. 177438, September 24, 2012).
c. Pre-existing obligation - In order to constitute estafa through issuance of bouncing
check, the postdating or issuing a check must be the efficient cause of the defraudation. In sum,
the offender must be able to obtain property from the offended party by reason of the issuance of
the check (People vs. Reyes, GR No. 157943, September 4, 2013). Thus, in estafa, the fact that
check was issued in payment of pre-existing obligation is a valid defense (People vs. Reyes, G.R.
No. 154159, March 31, 2005). But in BP Blg. 22, it is not a valid defense (Ngo vs. People, G.R. No.
155815, July 14, 2004). In BP Blg. 22, the check involved must be issued to apply on account or
for value. Deliberations in the Batasan Pambansa indicate that “account” refers to pre-existing
obligations; while “for value” means an obligation incurred simultaneously with the issuance of
the check.
e. Notice of dishonor – To be guilty of this crime the accused must have used the check
in order to defraud the complainant. However, prima facie evidence of deceit exists by law upon
proof that the drawer of the check failed to deposit the amount necessary to cover his check within
three days from receipt of the notice of dishonor (People vs. Reyes, supra). But receipt of notice of
dishonor is not an element of estafa through issuance of bouncing check.
The giving of the written notice of dishonor does not only supply the proof for the second
element of violation of BP Blg. 22 arising from the presumption of knowledge the law puts up but
also affords the offender due process. The law thereby allows the offender to avoid prosecution if
she pays the holder of the check the amount due thereon, or makes arrangements for the payment
in full of the check by the drawee within five banking days from receipt of the written notice that
the check had not been paid. The Court cannot permit a deprivation of the offender of this
statutory right by not giving the proper notice of dishonor (Resterio vs. People, G.R. No. 177438,
September 24, 2012).
Demand letter was given with the security guard without proof that it reached accused
and through registered mail which was returned with the notation "N/S Party Out 12/12/05".
Since there is proof that accused received the notice of dishonor, he was acquitted. However he
is still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).
The mere presentment of the two registry return receipts was not sufficient to establish
the fact that written notices of dishonor had been sent to or served on the petitioner as the issuer
of the check. Considering that the sending of the written notices of dishonor had been done by
registered mail, the registry return receipts by themselves were not proof of the service on the
accused without being accompanied by the authenticating affidavit of the person who had actually
mailed the written notices of dishonor, or without the testimony in court of the mailer on the fact
of mailing (Resterio vs. People, G.R. No. 177438, September 24, 2012).
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For notice by mail, it must appear that the same was served on the addressee or a duly
authorized agent of the addressee. In fact, the registry return receipt itself provides that “[a]
registered article must not be delivered to anyone but the addressee, or upon the addressee’s
written order, in which case the authorized agent must write the addressee’s name on the proper
space and then affix legibly his own signature below it.” In the case at bar, no effort was made to
show that the demand letter was received by petitioners or their agent. All that we have on record
is an illegible signature on the registry receipt as evidence that someone received the letter. As to
whether this signature is that of one of the petitioners or of their authorized agent remains a
mystery (Resterio vs. People, G.R. No. 177438, September 24, 2012).
The wife of complainant verbally informed the accused that the check had bounced did
not satisfy the requirement of showing that written notices of dishonor had been made to
and received by the petitioner. The verbal notices of dishonor were not effective because it is
already settled that a notice of dishonor must be in writing (Resterio vs. People, G.R. No.
177438. September 24, 2012.
Under the Negotiable Instruments Law, notice of dishonor is not required where the drawer
has no right to expect that the bank will honor the check. Since bank account of accused was
already closed even before the issuance of the subject check, he had no right to expect the drawee
bank to honor his check. Hence, he is not entitled to be given a notice of dishonor (Lopez vs.
People, G.R. No. 166810, June 26, 2008,). The crime involved in Lopez vs. People is estafa through
issuance of bouncing check. However, it is submitted the Lopez principle can be applied to
violation of BP 22.
In addition to proof of receipt of the notice of dishonor, the prosecution must also
establish beyond reasonable doubt the date when the accused received the notice of dishonor.
Without proof of the date of receipt, there is no way to ascertain when the five-day period under
Section 22 of BP 22 would start and end. The MeTC cannot simply presume that the date of the
demand letter (November 30, 1993) was likewise the date of when the accused received it. There
is simply no such presumption provided in our rules on evidence (Chua vs. People, G.R. No.
196853 July 13, 2015).
The stipulation on the existence of the demand letter and of accused’s signature thereon
is not admission that he received the demand letter. In fact, the accused is denying the receipt
of the demand letter and claimed that he was required to sign blank papers where the contents
of the demand letter dated November 30, 1993 were later intercalated (Chua vs. People, G.R. No.
196853 July 13, 2015).
A demand letter that precedes the issuance of checks cannot constitute as sufficient
notice of dishonor within the contemplation of BP 22 (Chua vs. People, G.R. No. 196853 July 13,
2015).
Acquittal of the accused for violation of BP Blg. 22 for failure to establish receipt of notice
of dishonor does not entail the extinguishment of his civil liability for the dishonored checks
(Chua vs. People, G.R. No. 196853 July 13, 2015).
f. Payment - Payment of check before the filing of information is a defense. The spirit of
B.P. Big 22, which is to protect the stability of the banking system, would not be served by
penalizing people who have corrected their mistakes and restituted damages even before charges
have been filed against them. In sum, by making payment of the check before the filing of the
information, the purpose of the law has already been attained. Payment of check after the filing
of information is not a defense. Since there is no showing of intention to mitigate the bad effects
of his issuance of the unfunded check, then there is no equitable reason to preclude the
prosecution of accused. In such a case, the letter of the law should be applied to its full extent
(Lim vs. People, G.R. No. 190834, November 26, 2014).
The essence of estafa through issuance of bouncing check is to punish fraud and not to
protect the integrity of the check. Damage and deceit are elements of estafa, and the check is
merely the accused's tool in committing fraud. In such a case, paying the value of the dishonored
check will not free the accused from criminal liability. It will merely satisfy the civil liability (Lim
vs. People, supra).
g. Suspension of payment - Suspension of payment order issued by SEC before the check
was presented for payment is a defense in BP Blg. 22. Considering that there was a lawful Order
from the SEC, the contract is deemed suspended. Thus, the accused has no obligation to fund
the check and the complainant has no right to present it for payment (Gidwani vs. People, GR No.
195064, January 15, 2014). Suspension of payment order issued by SEC after three months from
receipt of notice of dishonor is not a defense in BP Blg. 22. The accused has the obligation to
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make good of the check after he received the letter prior to the issuance of suspension order
(Rosario vs. Co, G.R. No. 133608, August 26, 2008).
h. Estafa and BP Blg 22 - Other differences between violation of BP Blg. 22 and estafa
include the following: (1) deceit and damage are essential elements of estafa but are not required
in BP Blg. 22; (2) a drawer of a dishonored check may be convicted under BP Blg. 22 even if he
had issued the same for a pre-existing obligation, while such circumstance negates criminal
liability for estafa; (3) specific and different penalties are imposed in each of the two offenses;
(4) estafa is essentially a crime against property, while violation of BP Blg. 22 is principally a
crime against public interest as it does injury to the entire banking system; and (5) crimes of
estafa are mala in se, while those of BP Blg. 22 are mala prohibita. (Rimando vs. Aldaba, G.R. No.
203583, October 13, 2014, )
Owing to such differences, the simultaneous filing of BP 22 and estafa cases do not
amount to double jeopardy. While the filing of the two sets of Information for violation of BP Blg.
22 and for estafa, may refer to identical acts committed by the accused, the prosecution thereof
cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of
offenses and where there is variance or differences between the elements of an offense is one law
and another law as in the case at bar there will be no double jeopardy because what the rule on
double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated,
prosecution for the same act is not prohibited. What is forbidden is prosecution for the same
offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double
jeopardy. (Rimando vs. Aldaba, G.R. No. 203583, October 13, 2014)
There is no showing whatsoever that accused had knowledge of the insufficiency of funds
of the check he endorsed to private complainant. Admittedly, the checks received by private
complainant were checks issued and paid to accused by a certain Ham. Upon notice that the
subject checks were dishonored, accused immediately searched for Ham but the same proved to
be futile considering that the latter already left the country. The business relationship between
private complainant and accused is already 16-year, and the former had the practice of accepting
the checks of clients of the latter, even if he did not personally know them. Thus, there is no need
for the accused to assure the complainant that the subject checks would be sufficiently funded
upon maturity before accepting the same. Clearly, private complainant was not deceived to accept
the subject checks but did so out of a standard procedure which he and accused developed over
the years. (Juaquico vs. People, G.R. No. 223998, March 05, 2018)
i. Venue of BP Blg. 22 - It is well-settled that violation of BP 22 cases is categorized as
transitory or continuing crimes, which means that the acts material and essential thereto occur
in one municipality or territory, while some occur in another. Accordingly, the court wherein any
of the crime’s essential and material acts have been committed maintains jurisdiction to try the
case; it being understood that the first court taking cognizance of the same excludes the other.
Stated differently, a person charged with a continuing or transitory crime may be validly tried in
any municipality or territory where the offense was in part committed. Applying these principles,
a criminal case for violation of BP 22 may be filed in any of the places where any of its elements
occurred – in particular, the place where the check is drawn, issued, delivered, or dishonored.
(People vs. Yalong, G.R. No. 187174, August 28, 2013)
In People vs. Yalong, G.R. No. 187174, August 28, 2013, while the check was drawn,
issued, and delivered in Manila, records reveal that Ylagan presented the same for deposit and
encashment at the LBC Bank in Batangas City where she learned of its dishonor. As such, the
MTCC, Batangas City, correctly took cognizance of case as it had the territorial jurisdiction to try
and resolve the same.
73. Child abuse – Section 10 (a) of RA No. 7610 punishes four distinct acts, to wit: (a)
child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions
prejudicial to the child's development. Accused can be convicted under Section 10 (a) if he
commits any of the four acts therein. The prosecution need not prove that the acts of child abuse,
child cruelty and child exploitation have resulted in the prejudice of the child because an act
prejudicial to the development of the child is different from the former acts. (Patulot vs. People,
G.R. No. 235071, January 7, 2019)
a. Physical injury – Child abuse (Section 10 of RA No. 7610) includes maltreatment,
whether habitual or not, of the child. Maltreatment includes psychological and physical abuse
(Section 3) or infliction of physical injury such as lacerations, fractured bones, burns, internal
injuries, severe injury or serious bodily harm suffered by a child (Rules and Regulations on the
Reporting and Investigation of Child Abuse Cases) such as banging the heads of the minor
students by their teacher (De Ocampo v. The Hon. Secretary of Justice, G.R. No. 147932, January
25, 2006)
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Child abuse includes disciplinary acts by the father such as belting, pinching, and
strangulating his 8-year-old child, which caused her to limb (Lucido vs. People, G.R. No. 217764,
August 7, 2017) or by teacher such as slamming him on the floor which caused him to lost
consciousness (Rosaldes v. People, G.R. No. 173988, October 8, 2014). Intent to discipline student
is not a defense since Article 233 of the Family Code prohibits the infliction of corporal
punishment by teacher. (Rosaldes v. People, supra)
b. Degrading the dignity of the child – Child abuse includes commission of acts or
uttering words which debases, degrades or demeans the intrinsic worth and dignity of a child as
a human being (Section 3) such as uttering statements “putang in mong bata ka namumuro ka
na sa akin at susunugin ko yong pamilya mo” (Jumaquio vs. Villarosa, G.R. No. 165924, January
19, 2009)
In Bongalon v. People, G.R. No. 169533, March 20, 2013, 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.
The Bongalon principle is only applicable if the accused assaulted a child in the heat of
anger or as spontaneous reaction to his misbehavior. In Jabalde v. People, G.R. No. 195224, June
15, 2016, the accused was informed that her daughter's head was punctured, and whom she
thought was already dead. The accused slapped, struck, and choked a minor as a result of the
former's emotional rage. Absence of any intention to debase, degrade or demean the dignity of the
child victim, the accused's act was merely slight physical injuries.
In Escolano vs. People, G.R. No. 226991, December 10, 2018, 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."
Uttering “putang ina” to the minors in the heat of anger is not child abuse. The expression
"putang ina mo" is a common enough utterance in the dialect that is often employed, not really to
slander but rather to express anger or displeasure. In fact, more often, it is just an expletive that
punctuates one’s expression of profanity.
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.
c. Physical injury without degrading the dignity of the child - Child abuse involving
infliction of physical injury is a crime independent from child abuse involving degrading the
dignity of the child. In child abuse involving infliction of physical injury, intent to debase, degrade
or demean the child is not an element thereof.
The statement "putang ina mo" and making hacking gestures with a bolo, which are
directed against the mother of two children, are not constitutive of child abuse involving degrading
the dignity of a child. Since the threatening acts are not directed against the children, intent to
degrade, debase or demean their dignity is not established. (Escolano vs. People, G.R. No. 226991,
December 10, 2018). 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 infliction of physical
injury. (Patulot vs. People, G.R. No. 235071, January 7, 2019)
74. Sexual abuse – Having sexual intercourse or lascivious conduct with a child
constitutes child prostitution if committed for money, profit, or any other consideration (People vs.
Jalosjos, G.R. Nos. 132875-76, November 16, 2001); or sexual abuse is committed under coercion
or influence of any adult, syndicate or group. In child prostitution, the victim is called child
exploited in prostitution while in sexual abuse the victim is called child subjected to other abuse
(Section 5 of RA No 7610). Coercion is either physical or psychological. Taking advantage of
ascendency as a swimming instructor over student is psychological coercion (People vs. Larin,
G.R. No. 128777, October, 7 1998). The assurance of love, guarantee that she would not get
pregnant by using the "withdrawal method" and the promise of marriage were classified as
"psychological coercion" and "influence" within the purview of Section 5 of RA 7610. Hence,
accused is guilty of sexual abuse (Caballo vs. People, GR No. 198732, June 10, 2013).
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If the acts constitute sexual abuse (or child prostitution), and rape or acts of lasciviousness,
the offender shall be prosecuted either under the Revised Penal Code or R.A. No. 7610 (People vs.
Abay, G.R. No. 177752, February 24, 2009), whichever prescribes a graver penalty. (Dimakuta v.
People, G.R. No. 206513, October 20, 2015; People vs. Tulugan, G.R. No. 227363, March 12, 2019)
The higher penalty under either law must be applied for the minor victim’s benefit. Imposing a
lower penalty for the offender is undeniably unfair to the child victim. (People v. Pusing, G.R. No.
208009, July 11, 2016).
Sexual abuse, and sexual assault or acts of lasciviousness - If the acts constitute sexual
abuse, and sexual assault or acts of lasciviousness, the perpetrator shall be prosecuted under RA
No. 7610. The penalty under RA No. 7610 is graver than that under the Revised Penal Code. In
line with the Tulugan case, proper nomenclature of the offense is “lascivious conduct” under RA
No. 7610. (People vs. Molejon, G.R. No. 208091, April 23, 2018; ZZZ vs. People, G.R. No. 243467,
April 08, 2019; De Joan vs. People, G.R. No. 232957, September 25, 2019; People Vergara, G.R.
No. 242477, September 2, 2019)
The accused is charged of acts of lasciviousness. The information alleged “force and
intimidation,” which is an element of acts of lasciviousness under the Revised Penal Code but it
does not aver "coercion or influence,” which is an element of lascivious conduct under RA No.
7610. The accused may be convicted of the graver crime of lascivious conduct. (See: People vs.
Molejon, supra) The term "coercion and influence" is broad enough to cover "force and
intimidation,” which are alleged in the information. In fact, as these terms are almost used
synonymously, it is then of no moment that the terminologies employed by RA 7610 and by the
Information are different. (Quimvel v. People, G.R. No. 214497, April 18, 2017; People vs. Ejercito,
G.R. No. 229861, July 2, 2018; People vs. Tulugan, G.R. No. 227363, March 12, 2019)
Sexual abuse and rape - If the acts constitute sexual abuse, and rape (or sexual assault
with homicide), the perpetrator shall be prosecuted under the Revised Penal Code. The penalty
under the Code is graver than that prescribes by RA No. 7610. Rape is severely penalized because
it may lead to unwanted procreation; or to paraphrase the words of the legislators, it will put an
outsider into the woman who would bear a child, or to the family, if she is married. (People vs.
Tulugan, supra) Where a minor is raped, the Revised Penal Code ought to prevail over RA 7610.
(People vs. Ejercito, supra)
The information charged the accused of rape. “Force or intimidation,” which is an element
of rape is alleged in the information and proven by evidence beyond reasonable doubt. The
accused is convicted of rape, and not sexual abuse. The term "coercion and influence" is broad
enough to cover "force and intimidation.” (Quimvel v. People, supra) However, the prosecution
evidence specifically pertains to “force and intimidation as an element of rape,” and it did not refer
to the broader scope of “influence or coercion as an element of sexual abuse”. (People vs. Abay,
supra; People vs. Pangilinan, G.R. No. 183090, November 14, 2011; People vs. Tubillo, G.R. No.
220718, June 21, 2017)
The prosecution sufficiently established that accused chanced upon AAA, poked her neck
with a bladed weapon, covered her eyes and nose, and thereafter had sexual intercourse with her
against her will. Applying Abay, Pangilinan, and Tubillo, accused is convicted of rape, and not
sexual abuse. (People vs. Laguerta, G.R. No. 233542, July 09, 2018)
There are special rules under Section 5 (b) of RA No. 7610 if the child exploited in prostitution
or sexual abuse is under 12 years of age. A demented person (idiot, imbecile, and feebleminded),
whose metal age is under 12 years, is covered by these rules. (People v. Pusing, supra; People vs.
Tulugan, supra)
If the perpetrator had sexual intercourse or lascivious conduct with a child exploited in
prostitution or sexual abuse, who is under 12 years old (or demented), the former shall be
prosecuted for rape. (First proviso of Section 5 [b] of RA No. 6710) The word “rape” includes
qualified sexual assault.
Rape - Sexual abuse or child prostitution under RA No. 7610 is separate and distinct from
statutory rape under Revised Penal Code. Aside from being dissimilar in the sense that the former
is an offense under special law, while the latter is a felony under the Code, they also have different
elements. Nevertheless, sexual intercourse with a victim who is under 12 years of age or is
demented is always statutory rape, as Section 5(b) of R.A. No. 7610 expressly states that the
perpetrator will be prosecuted under Code. (People vs. Tulugan, supra)
Even if the girl who is below twelve (12) years old or is demented consents to the sexual
intercourse, it is always a crime of statutory rape under the Revised Penal Code, and the offender
should no longer be held liable under R.A. No. 7610. For example, a nine (9)-year-old girl was sold
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by a pimp to a customer, the crime committed by the latter if he commits sexual intercourse with
the girl is still statutory rape (and not child prostitution), because even if the girl consented or is
demented, the law presumes that she is incapable of giving a rational consent. (People vs.
Tulugan, supra)
Qualified sexual assault – Accused inserted his penis into the mouth of his foster child,
whose actual age is above 12 years old, but her mental age is 9 years old. The crime committed
is statutory sexual assault. The qualifying circumstances of minority and guardianship, and
mental disability are present. Since the mental age of the victim is under 12 years, first proviso
Section 5 (b) of RA No. 7610 is applicable. Under this provision, if the perpetrator had lascivious
conduct with a child exploited in sexual abuse, who is under 12 years old, the former shall be
prosecuted for rape under the Revised Penal Code, which includes qualified sexual assault.
(People v. Pusing, G.R. No. 208009, July 11, 2016)
If the perpetrator committed lascivious conduct with a child exploited in prostitution or
sexual abuse, who is under 12 years old or demented, the former shall be prosecuted for lascivious
conduct under Revised Penal Code: Provided, That the penalty shall be reclusion temporal in its
medium period. (second proviso of Section 5 [b] of RA No. 6710) The word “lascivious conduct”
covers acts of lasciviousness and simple sexual assault.
Acts of lasciviousness – If the accused committed acts of lasciviousness against a child
exploited in prostitution or sexual abuse, who is under 12 years of age or demented, the former
shall be prosecuted for acts of lasciviousness under the Revised Penal Code with the penalty of
reclusion temporal in its medium period under RA No. 7610. In line with the Tulugan case, the
proper nomenclature of this crime is acts of lasciviousness under Revised Penal Code in relation
to RA No. 7610 (People vs. Molejon, G.R. No. 208091, April 23, 2018; Granton vs. People, G.R.
No. 226045, October 10, 2018; Francisco vs. People, G.R. No. 241452, March 25, 2019; 1993 and
2016 Bar Exams)
To apply the penalty of reclusion temporal in its medium period pursuant to the second
proviso, the requisites of acts of lasciviousness must be met in addition to the requisites for sexual
abuse or child prostitution. (Quimvel v. People, supra; Ramilo vs. People, G.R. No. 234841, June
3, 2019; People vs. Basa, G.R. No. 237349, February 27, 2019)
The accused is charged of acts of lasciviousness against an under-12-year-old child. The
information alleged “force and intimidation,” which is an element of acts of lasciviousness under
the Revised Penal Code but it does not aver "coercion or influence,” which is an element of sexual
abuse under RA No. 7610. But it was ruled that the term "coercion and influence" is broad enough
to cover "force and intimidation” as alleged in the information. Committing lascivious conduct
against an under-12-year-old child is statutory acts of lasciviousness. Committing lascivious
conduct against a child under coercion or influence is sexual abuse. Since the elements of acts of
lasciviousness and those of sexual abuse are proven, the accused is convicted of acts of
lasciviousness under the Revised Penal Code in relation to RA No. 7610. (Quimvel v. People, supra)
Simple sexual assault – If the accused committed simple sexual assault against a child
exploited in prostitution or sexual abuse, who is under 12 years of age or demented, the former
shall be prosecuted for sexual assault under the Revised Penal Code with the penalty of reclusion
temporal in its medium period under RA No. 7610. In line with the Tulugan case, the proper
nomenclature of the crime is “sexual assault” under Revised Penal Code in relation to RA No.
7610. (People vs. Tulugan, supra; Ramilo vs. People, G.R. No. 234841, June 3, 2019;)
The accused the force inserted his finger into the genital orifice of a child, who is 10 years
old. The victim is a child exploited in sexual abuse since the element of coercion is present. Since
the victim is under 12 years of age, the crime committed is statutory sexual assault. The penalty
for sexual assault under the Revised Penal Code is prision mayor. On the other hand, the penalty
for lascivious conduct under second proviso of Section 5 (b) RA No. 7610 is reclusion temporal in
its medium period. To impose the lighter penalty under the Revised Penal Code is unfair to the
victim. To prevent unfairness, the Supreme Court imposed the graver penalty under R.A. No.
7610. In sum, the accused is convicted of simple sexual assault under the Revised Penal Code in
relation of RA No. 7610 (People v. Chingh, G.R. No. 178323, March 16, 2011)
If the courts would not opt to impose the higher penalty under RA No. 7610 in cases of
sexual assault, wherein the victims are under 12 years of age, an accused who commits acts of
lasciviousness under Revised Penal Code in relation to R.A. 7610, suffers the more severe penalty
of reclusion temporal in its medium period, than the one who commits sexual assault which is
punishable by prision mayor. (People vs. Talibog, G.R. No. 238112, December 05, 2018) Moreover,
R.A. No. 7610 is a special law which should clearly prevail over R.A. 8353, which is a mere general
law amending the Revised Penal Code. (Granton vs. People, G.R. No. 226045, October 10, 2018;
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Ricalde v. People, G.R. No. 211002, January 21, 2015, and People vs. Adajar, G.R. No. 231306,
June 17, 2019)
The accused through force inserted his tongue in the genital orifice of his 8-old-year
daughter. The victim is a child exploited in sexual abuse since the element of coercion is present.
Since the victim is under 12 years of age, the crime committed is statutory sexual assault.
Qualifying circumstance of relationship and minority is present. The penalty for qualified sexual
assault under the Revised Penal Code is reclusion temporal. On the other hand, the penalty for
lascivious conduct under second proviso of Section 5 (b) RA No. 7610 is reclusion temporal in its
medium period. Accused was convicted of qualified sexual assault with the penalty under the
Revised Penal Code. Since rationale of unfairness to the child victim that Chingh case wanted to
correct is absent because Revised Penal Code already prescribes the high penalty, there is no
need to apply the penalty under RA No. 7610. (People v. Bonaagua, G.R. No. 188897, June 6,
2011; People v. Pusing, G.R. No. 208009, July 11, 2016)
75. Terrorism - Before terrorism is punishable under RA No. 9372 or the Human Security
Law. However, Section 56 of RA No. 11479 expressly repeals RA No. 9372. Terrorism is now
punishable under RA No. 11479.
Under Section 4 of RA No. 11479, terrorism is committed by any person who, within or
outside the Philippines, regardless of the stage of execution:
(a) Engages in acts intended to cause death or serious bodily injury to any person, or
endangers a person's life;
(b) Engages in acts intended to cause extensive damage or destruction to a government or
public facility, public place or private property;
(c) Engages in acts intended to cause extensive interference with, damage or destruction
to critical infrastructure;
(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons,
explosives or of biological, nuclear, radiological or chemical weapons; and
(e) Release of dangerous substances, or causing fire, floods or explosions
when the purpose of such act, by its nature and context, is to intimidate the general public or a
segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by
intimidation the government or any international organization, or seriously destabilize or destroy
the fundamental political, economic, or social structures of the country, or create a public
emergency or seriously undermine public safety.
Terrorism is composed of criminal act and criminal intention (or purpose). For example,
engaging in acts intended to cause death person is the criminal act while intimidating the general
public is the criminal intention.
Intent to intimidate the general public - Pedro out of jealousy threw hand grenade at
her wife and paramour. This is not terrorism but a complex crime of parricide and murder. The
reason behind the killings is personal. There is no intention to intimidate the general public,
create an atmosphere or spread a message of fear, or provoke or influence by intimidation the
government.
Pedro detonated a time bomb in LRT, and caused death and serious bodily injury to several
persons, endangers the life of others, and causes extensive damage a critical infrastructure. By
its nature and context, the bombing intimidated the general public and created an atmosphere or
spread a message of fear. This is terrorism. Direct evidence that the purpose of Pedro is to
intimidate the general public is not required. The phrase “by its nature and context” means that
the court can determine that the purpose of the offender in detonating a bomb is to intimidate
the general public by taking into consideration nature and context of criminal act.
In terrorism under RA No. 9372, a predicate crime such as murder must create a condition
of widespread and extraordinary fear and panic among the populace. However, under RA No.
11479, widespread fear to the populace is not an element of terrorism since this crime can be
committed although the intention of the terrorists is merely to intimidate “segment” of the general
public.
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Intimidate the government or international government - The word “government” in RA
No. 11479 which the terrorists intend to provoke or influence by intimidation includes foreign
government. The law uses the word “government” without making a distinction between Philippine
Government and foreign government. It is a well known maxim in statutory construction that
where the law does not distinguish, we should not distinguish.
The word “international organization” in RA No. 11479 which the terrorists intend to provoke
or influence by intimidation refers to an organization established by a treaty or other instrument
governed by international law and possessing its own international legal personality. United
Nation and World Health Organization are international organizations.
Pedro, a member of Al-Qaeda, detonated a time bomb in US Embassy, Manila, and caused
death and serious bodily injury to several persons, endangers the life of others, and causes
extensive damage to an US government facility. Al-Qaeda claimed responsibility and demanded
that the U.S. government should not to interfere with the affairs of the Muslim. This is terrorism
since the purpose of Pedro is to influence the US government by intimidation.
To constitute terrorism under RA No. 9372, murder must create a condition of fear and panic
among the populace in order to coerce the government to give in to an unlawful demand. In
terrorism under the old law, creating fear to the general public by committing murder, and intent
to coerce the government must concur. However, under RA No. 11479, the intention of the
terrorist is either to intimidate the general public, or to influence the government through
intimidation. The concurrence of intent to intimidate the public and intent to influence the
government is not required in terrorism under the new law.
Pedro detonated a time bomb in LRT, and caused death and serious bodily injury to several
persons, endangers the life of others, and causes extensive damage a critical infrastructure. This
is not terrorism under RA No. 9372 because there is no showing that Pedro detonated the bomb
in order to coerce the government to give in to an unlawful demand such secession of Mindanao
from the Philippines. However, this is terrorism under RA No. 11479 since by its nature and
context, the bombing intimidated the general public and created an atmosphere or spread a
message of fear.
Destroying fundamental political, economic, or social structures - Committing a
criminal act described in Section 4 of RA No. 11479 such as acts intended to cause death to
person for purpose of seriously destabilize or destroy the fundamental political, economic, or
social structures of the country is terrorism.
Members of the CPP-NPA wage a civil war to overthrow the government, and replace it with
communist government. Since there is public and armed uprising to remove the territory of the
Philippines allegiance of the Filipino people to present government and its laws, they are liable for
rebellion. If members of the CPP-NPA detonated time bomb in LRT for purpose of destroying the
political and economic structure of the country from democratic and capitalist government to
communist government, they are liable for terrorism.
Creating a public emergency or seriously undermine public safety - Release of dangerous
substances such a biological weapon that creates a public emergency or seriously undermine
public safety is terrorism.
Terrorism is committed regardless of stage of execution - Pedro, a member of Al-Qaeda,
set a time bomb in US Embassy, Manila, to explode after two hours. However, the authorities
discovered the bomb and defused it. Even though the stage of executing the criminal design to
bomb the US Embassy is merely attempted, the crime committed is terrorism.
Exclusionary proviso - Terrorism under RA No. 11479 shall not include advocacy, protest,
dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and
political rights, which are not intended to cause death or serious physical harm to a person, to
endanger a person's life, or to create a serious risk to public safety.
Mass action which caused incidental destruction of properties and killing of police officers
will not make the participators liable for terrorism. However, if the organizers deliberately
organized mass action to cause death or serious bodily injury to any person, extensive damage or
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destruction to a government or public facility, public place, or private property or critical
infrastructure to influence by intimidation the government, the crime committed is terrorism.
Non-mutually exclusive crimes - In Lagman vs. Medeldea, G.R. No. 231658, July 04,
2017, the Supreme Court stated that there is nothing in Article 134 of the Revised Penal Code
and RA No. 9372 which states that rebellion and terrorism are mutually exclusive of each other
or that they cannot co-exist together. RA No. 9372 does not expressly or impliedly repeal Article
134 of the Code. And while rebellion is one of the predicate crimes of terrorism, one cannot absorb
the other as they have different elements.
76. Trafficking in person – The elements of trafficking in person are as follows: (1)
The act of recruitment, transportation, transfer or harboring, or receipt of persons with or without
the victim's consent or knowledge, within or across national borders; (2) The means used which
include "threat or use of force, or other forms of coercion, abduction, fraud, deception or abuse
of power or of position, taking advantage of the vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve the consent of a person having control over another;
this means as an element can be dispensed with when the victim is a minor and (3) The purpose of
trafficking is exploitation which includes "exploitation or the prostitution of others or other forms
of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs.
(People vs. De Dios, G.R. No. 234018, June 06, 2018)
Accompanying a child and offering her sexual services in exchange for money constitutes
child prostitution. The accused who offered the victim to the one who raped her is not liable for
rape as principal indispensable cooperation since bringing the victim to the rapist is not
indispensable to the commission of the crime of rape (People vs. Dulay, GR No. 193854,
September 24, 2012). If the accused is regularly offering the sexual service of the child in exchange
for money, the crime committed is not anymore child prostitution. Maintaining or hiring the child
as purpose of prostitution constitutes qualified trafficking in person because the former took
advantage of vulnerability of the latter as a child and as one who need money. Minority is
qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014; People vs.
Hirang, G.R. No. 223528, January 11, 2017). Recruiting without license a person, child or adult,
to work as a prostitute abroad constitutes the crime of trafficking in person and illegal
recruitment. Syndicate is qualifying circumstance in both crimes. Even if the accused is less than
three, but the allegation and evidence show that there are at least three traffickers and recruiters,
syndicated can be appreciated as qualifying circumstance (People vs. Lalli, G.R. No. 195419,
October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012).
In Young vs. People, G.R. No. 213910, February 03, 2016, petitioners allegedly recruited
and hired the AAA Group and, consequently, maintained them under their employ in Jaguar for
the purpose of engaging in prostitution. Accused can be properly charged with trafficking in
person.
AAA was first lured to prostitution when accused offered her to a male customer and paid
her P400.00 for the transaction. Several other transactions transpired thereafter. Accused would
transact with the customers and then pay AAA each time for her service. It did not matter that
there was no threat, force, coercion, abduction, fraud, deception or abuse of power that was
employed by accused when she involved AAA in her illicit sexual trade. AAA was still a minor
when she was exposed to prostitution by the prodding, promises and acts of accused. Trafficking
in persons may be committed also by means of taking advantage of the persons' vulnerability as
minors. Accused was convicted of qualified trafficking in person. (People vs. De Dios, G.R. No.
234018, June 06, 2018)
Accused deceived 5 complainants, who were mostly minors, for they are made to believe
that they will be working as house helpers in Cagayan De Oro City with an enticing salary of
P1,500.00 per month. She told them that they would be allowed to go home once a week. However,
the complainants were transported to Marawi City. The complainants would not have agreed or
would not have been allowed by their parents if accused would directly offer them work at Marawi
City. The accused deliberately fabricated a story to delude her victims and their parents. When
complainant asked for their salary, they were told that it had already been given to accused. This
is slavery. Accused was convicted of trafficking in person qualified by the circumstance of minority
and large scale. (People vs. Nangcas, G.R. No. 218806, June 13, 2018)
In People vs. Saxo, G.R. No. 227704, April 10, 2019, 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.
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 complainant's male customers
before using the room. The trial court trial court convicted him of qualified trafficking in person
for knowingly leasing his house for the purpose of promoting trafficking in persons under Section
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5 of RA No. 9208. The Supreme Court said that the trial court committed a serious error. The
crime under Section 5 of RA 9208 must be properly denominated as “acts that promote trafficking
in persons,” and not qualified trafficking in person.
77. Illegal recruitment - An employee may be held liable with his employer, if the former
actively and consciously participated in illegal recruitment. The employee cannot escape liability
by claiming that she was not aware that before working for her employer in the recruitment
agency, she should first be registered with the POEA. Illegal recruitment in large scale is malum
prohibitum, not malum in se. Good faith is not a defense (People vs. Valenciano, G.R. No. 180926,
December 10, 2008).
78. RA No. 9165 - Accused were caught by police authorities on board a speedboat
carrying shabu. Since it was not proven that the drugs came from China or foreign country they
were convicted of possession of dangerous drugs, which is necessarily included in the charge of
importation (People vs. Chan Liu, G.R. No. 189272, January 21, 2015).
Possession of different kinds of dangerous drugs in a single occasion constitutes a single
offense of possession of dangerous drugs (David vs. People, G.R. No. 181861, October 17, 2011).
For illegal possession of dangerous drugs, the prosecution must establish that the accused
freely and consciously possessed the dangerous drug without authority. However, mere
possession of dangerous drug constitutes prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused in the absence of any satisfactory explanation (Asiatico vs. People,
G.R. No. 195005, September 12, 2011).
a. Use of dangerous drugs - Where residue of dangerous drugs is found and there is a
positive confirmatory test result, the accused should be charged with use rather than possession
of dangerous drugs. This would be in keeping with the intent of the law to rehabilitate first time
offenders of drug use and provide them with an opportunity to recover for a second chance at life
(People vs. Matinez, G.R. No. 191366, December 13, 2010).
Positive confirmatory test is an element of use of dangerous drugs. However, the absence
of such test cannot be raised as an issue for the first time on appeal (Ambre vs. People, G.R. No.
191532. August 15, 2012).
b. Attempted sale - Poseur-buyer showed shabu for sale to poseur buyer. The sale was
aborted when the police officers immediately placed accused under arrest. The crime committed
is attempted sale (People vs. Figueroa, G.R. No. 186141, April 11, 2012).
c. Coordination with PDEA - Section 86 of RA No. 9165, which declares PDEA shall be
the "lead agency" in the investigations and prosecutions of drug-related cases, is more of an
administrative provision. It is silent as to the consequences of failure on the part of the law
enforcers to seek the authority of the PDEA prior to conducting a buy-bust operation (People vs.
Berdadero, G.R. No. 179710 June 29, 2010). Lack of coordination with the PDEA will not
invalidate a buy-bust operation. Such coordination is not an indispensable requirement in buybust operations (People vs. Mendosa, G.R. No. 189327, February 29, 2012).
d. Seizure and custody – The absence of a physical inventory and the lack of a
photograph of the seized items are not sufficient justifications to acquit the appellant as the
Court in several cases has affirmed convictions despite the failure of the arresting officers to
strictly comply with the Chain of Custody Rule as long as the integrity and identity of the corpus
delicti of the crime are preserved (People vs. Villahermoso, G.R. No. 218208, January 24, 2018).
The original version of Section 21 of RA No. 9165 did not provide the place where the
inventory and photography of the confiscated item shall be conducted. However, Section 21 of
RA No. 9165 as amended by RA No. 10640 now includes a specification of locations where the
physical inventory and taking of photographs must be conducted. The amended section uses the
mandatory verb "shall" and now includes the following proviso: Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or
at the nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures (People vs. Que, G.R. No. 212994, January 31, 2018).
Under Section 21 of RA No. 9165, the apprehending team shall conduct physical inventory
of the seized dangerous drugs and photograph the same in the presence of “at least four persons”,
to wit: (1) the accused or the person from whom such items were confiscated or his representative
or counsel; (2) media representatives (3) DOJ representative and (4) any elected public official.
However, RA No. 10640 amended Section 21 of RA No. 9165 and relaxed this provision with
respect to the persons required to be present during the physical inventory and photographing of
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the seized items. Under Section 21 of RA No. 9165 as amended by RA No. 10640, the inventory
and photography of the seized items must be made in the presence of “at least three persons”, to
wit: (1) the accused or the person from whom such items were confiscated or his representative
or counsel; (2) the media or representatives of National Prosecution Service and (3) any elected
public official. RA No. 9165 as amended uses the disjunctive “or” in the phrase “the National
Prosecution elected public official Service or the media.” Thus, a representative from the media and
a representative from the National Prosecution Service are now alternatives to each other (People
vs. Que, G.R. No. 212994, January 31, 2018).
The original version of Section 21 of RA No. 9165 did not provide the effect of noncompliance of the rule on inventory and photography of the confiscated item. Section 21 of RA
No. 9165 as amended by Republic Act No. 10640, now includes a proviso that sanctions
noncompliance under "justifiable grounds": Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and
invalid such seizures and custody over said items (People vs. Que, G.R. No. 212994, January 31,
2018). The justifiable ground for non-compliance must be proven as a fact, because the Court
cannot presume what these grounds are or that they even exist. Moreover, for the above-saving
clause to apply, the prosecution must explain the reasons behind the procedural lapses, and that
the integrity and evidentiary value of the seized evidence had nonetheless been preserved (People
vs. Paz, G.R. No. 229512, January 31, 2018).
The following are justifiable grounds for failure to comply with the three-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 antidrug 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 the Revised Penal Code 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)
The police were able to explain the failure to conduct an inventory and take photographs
of the seized items. This is because of the intervening fact that one Illuminado Acosta was shot
at the time of the buy-bust operation (People vs. Flor, G.R. No. 216017, January 19, 2018).
In People vs. Lim, supra, an agent testified that no members of the media and barangay
officials arrived at the crime scene because it was late at night and it was raining, making it
unsafe for them to wait at the house of the accused. Another agent similarly declared that the
inventory was made in the PDEA office considering that it was late in the evening and there were
no available media representative and barangay officials despite their effort to contact them. He
admitted that there are times when they do not inform the barangay officials prior to their
operation as they might leak the confidential information. We are of the view that these
justifications are unacceptable as there was no genuine and sufficient attempt to comply with the
law. The prosecution likewise failed to explain why they did not secure the presence of a
representative from the DOJ. Accused was acquitted.
A policeman failed to comply with Section 21 of R.A. No. 9165 since the inventory and
photograph of the drugs was only made in the presence of barangay tanod and the same was not
submitted to the PNP Crime Laboratory within 24 hours (because he was sick). On appeal, the
defense raised the issue of inadmissibility of evidence for failure to comply with the rule on chain
of custody. The policeman failed to comply with the rule on three-witnesses (accused, public
officer, and media or NPS representative) and did not offer justifiable grounds for such noncompliance. However, the issue of non–compliance with Section 21 of R.A. No. 9165 cannot be
raised for the first time on appeal. Hence, the defense of the accused should be rejected (People
v. Badilla, G.R. No. 218578, August 31, 2016)
e. Chain of custody - The chain of custody refers to recorded authorized movements and
custody of confiscated dangerous drugs. It involves testimony on every link in the chain - from
the confiscation of the illegal drugs to its receipt in the forensic laboratory up to its presentation
in court. It is necessary that every person who touched the seized item describe how and from
whom he or she received it; where and what happened to it while in the witness’ possession; its
condition when received and at the time it was delivered to the next link in the chain. Generally,
there are four links in said chain of custody: 1) the seizure and marking, if practicable, of the
illegal drug confiscated from the accused by the apprehending officer; 2) the turnover of the seized
drug by the apprehending officer to the investigating officer; 3) the turnover by the investigating
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officer of said item to the forensic chemist for examination; and, 4) the turnover and submission
thereof from forensic chemist to the court (People vs. Gajo, G.R. No. 217026, January 22, 2018).
f. Plea bargaining - Section 23 of RA No. 9165, any person charged under any crime
involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of the
provision on plea-bargaining. However, this provision was declared as unconstitutional for
contrary to the rule making authority of the Supreme Court (Estipona, Jr. vs. Lobrigo, G.R. No.
226679, August 15, 2017).
79. RA No. 3019 – Corruption is an independent crime. Section 3 of R.A. No. 3019 reads:
“In addition to acts or omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer.” It is clear then that one may be charged
with violation of R.A. No. 3019 in addition to a felony under the Revised Penal Code for the same
act. (Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727–28, August 18, 2006) Thus, the offender
in addition to violation of Section 3 of R.A. No. 3019 can be held liable for falsification of document
by public official (Suero v. People, G.R. No. 156408, January 31, 2005); or malversation through
falsification of document (People vs. Pajaro, G.R. Nos. 167860–65, June 17, 2008) or failure to
render an accounting. (Lumauig v. People, G.R. No. 166680, July 7, 2014); or plunder (See: Senator
Revilla vs. Office of the Ombudsman, G.R. Nos. 212427-28, December 6, 2016, )
Under Section 3 of RA No. 3019, any incumbent public officer, against whom any criminal
prosecution under a valid information for crime of corruption under RA 3019, crimes committed
by public officer under the RPC or for any offense involving fraud upon government or public
funds or property is pending in court, shall be suspended from office. The allegation of
falsification of the three public documents by making it appear that the flood control project was
100% complete when in fact it was not constitutes fraud upon public funds, which is a ground
to preventively suspend a public officer (Abdul vs. Sandiganbayan, G.R. No. 184496 December
2, 2013).
It cannot be denied that the transfer of the vehicles to SFWD was made to ensure the
success of the implementation of the waterworks projects in the province. The Deed of Donation
expressly provided that the subject vehicles shall be used for the said purpose. There is no
showing that the accused acted in bad faith in donating the vehicles. Accused was acquitted of
violation of RA No. 3019 (Bustillo vs. People, G.R. No. 160718 May 12, 2010).
The amount and number of loans (P16 million) obtained from the government bank by
the private company despite being undercapitalized (P7 million capital stock) and absence of any
action by the bank to collect full payment are showing that the contract, which is manifestly
disadvantageous on the part of the government, violates Section 3 (g) of RA No. 3019. The private
individual, who obtained that loan, and the responsible bank officers are liable for the crime of
corruption. Private persons may likewise be charged with violation of Section 3(g) of RA 3019 if
they conspired with the public officer in consonance with the avowed policy of this law, which is
to repress certain acts of public officers and private persons (Singian, Jr. vs. Sandiganbayan,
G.R. Nos. 195011-19 September 30, 2013).
Accused, as a school principal, acted with evident bad faith in refusing to implement the
appointments of private complainants as ordered by the CHED. Her refusal to implement the
subject promotion was based on a personal dislike or ill feelings towards the complainants and
not anchored on any law or civil service rule. Despite of the several directives of the CHED to
implement the promotion, the accused refused to do so. The complainants suffered undue injury
they failed to enjoy the benefits of an increased salary corresponding to their newly appointed
positions. Accused was convicted of violation of Section 3 (e) of RA No. 3019 (Catacutan vs. People,
G.R. No. 175991 August 31, 2011).
Accused gave unwarranted benefits and advantage to several contractors by allowing them
to deploy their equipment ahead of the scheduled public bidding. Under law, a public contract
shall be awarded to the lowest prequalified bidder. The successful bidder may be allowed to
commence work only upon receipt of a Notice to Proceed. They are liable for violation of Section 3
(e) of RA No. 3019. (Abubakar vs. People, G.R. No. 202408, June 27, 2018)
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a. Arias principle -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: (a) Where the accused has foreknowledge of existing anomaly
– e.g., mayor signed the inspection report and the 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 (b) 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);
In Lihaylihay vs. People, G.R. No. 191219, July 31, 2013, , the accused in his capacity as
Chairman of the Inspection and Acceptance Committee, signed the 16 certificates of acceptance,
inventory, and delivery of articles despite its incompleteness or lack of material dates, while coaccused certified to the correctness of the Inspection Report Forms even if no such deliveries were
made. Since there are reasons for the heads of offices to further examine the documents in
question, accused cannot seek refuge by invoking the Arias doctrine.
The Arias doctrine cannot exonerate accused from criminal liability because there were
circumstances that should have prompted them to make further inquiries on the transactions
subject of this case e.g. the irregular mobilization of contractors prior to the scheduled public
bidding, and contract which contains a patently illegal stipulation and advance payment without
appropriate documents such as purchase orders and delivery receipts to support this
disbursement. (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)
b. Inducement by means of money - Under Section 3 (a) of RA No. 3019, a public officer,
who persuades, induces or influences another public officer to perform an act constituting a
violation of rules and regulations or an offense in connection with the official duties of the latter,
shall be punished for corruption. However, the deliberation in the Senate regarding the bill on
anti-graft shows that the mode of committing the crime under Section 3 (a) is persuading,
inducing or influencing a public officer by another public officer to commit an offense or to violate
rules and regulations by means of consideration, reward, payment or remuneration (Baviera vs.
Zoleta, G.R. No. 169098, Oct. 12, 2006).
c. Transaction or contract - Section 3 (b) of RA No. 3019 is limited only to contracts or
transactions involving monetary consideration where the public officer has the authority to
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intervene under the law. Preliminary investigation is not a contract or transaction within the
contemplated of Section 3 (b). Hence, requesting or receiving money in connection with a
preliminary investigation is not a violation of this provision (Soriano, Jr. vs. Sandiganbayan, G.R.
No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice Secretary Perez, G.R. No.
188165, December 11, 2013).
d. Inordinate delay doctrine – Inordinate delay in resolving a criminal complaint is
violative of the constitutionally guaranteed right to due process and to the speedy disposition of
cases, which warrants the dismissal of the criminal case. Delay prejudices the accused or
respondent and the State just the same. Prejudice should be assessed in the light of the interest
of the defendant that the speedy trial was designed to protect, namely: to prevent oppressive pretrial incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the
possibility that his defense will be impaired. Of these, the most serious is the last, because the
inability of a defendant adequately to prepare his case skews the fairness of the entire system.
There is also prejudice if the defense witnesses are unable to recall accurately the events of the
distant past.
In Coscolluela, the fact that it took the Ombudsman eight years to resolve a case under
preliminary investigation was considered violative of the right to speedy disposition of cases. In
Cervantes, it took the OSP six years from the filing of the initiatory complaint before deciding to
file an information; this was struck down as well. In Tatad v. Sandiganbayan, a three-year delay
in the termination of the preliminary investigation by the Tanodbayan was considered violative
of the right. In Lopez, Jr. v. Office of the Ombudsman, the preliminary investigation was resolved
close to four years from the time all the counter- and reply-affidavits were submitted to the
Ombudsman, and this was similarly struck down. In People v. Sandiganbayan, the fact-finding
investigation and preliminary investigation by the Ombudsman lasted nearly five years and five
months, which the Court considered an inordinate delay. The same is true in Angchangco,
Jr., and Roque v. Office of the Ombudsman, where the delay involved a period of six years, more
or less. In Licaros, the failure of the Sandiganbayan to decide the case even after the lapse of
more than 10 years after it was submitted for decision was declared to involve "more than just a
mere procrastination in the proceedings. In this case, the preliminary investigation proceedings
in said case took more than 11 long years to resolve. Thus, the case against petitioner should be
dismissed (Almeda vs. Office of the Ombudsman, G.R. No. 204267, July 25, 2016).
e. Behest loan – The following are the essential elements for violation of Section 3 (e) of
RA 3019: (1) The accused must be a public officer discharging administrative, judicial or official
functions; (2) He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and (3) That his action caused any undue injury to any party, including the
government, or giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions. (Office of the Ombudsman vs. Prudente, G.R. No. 201830, November
10, 2015; ; PCGG vs. Gutierrez, G.R. No. 194159, October 21, 2015, )
The elements of violation of Section 3 (g) are: (a) that the accused is a public officer; (b)
that he entered into a contract or transaction on behalf of the government; and (c) that such
contract or transaction is grossly and manifestly disadvantageous to the government. (PCGG vs.
Gutierrez, G.R. No. 194159, October 21, 2015)
Unlike Section 3 (e) of RA No. 3019, Section 3 (g) does not require the giving of unwarranted
benefits, advantages or preferences to private parties who conspire with public officers, its core
element being the engagement in a transaction or contract that is grossly and manifestly
disadvantageous to the government. (PCGG vs. Office of the Ombudsman, G.R. No. 193176,
February 24, 2016)
Granting of behest loan by government bank or entity to private individual may violate
Section 3 (g) of RA No. 3019 (PCGG vs. Office of the Ombudsman, G.R. No. 193176, February 24,
2016, ). The following criteria may be utilized as a frame of reference in determining a behest loan:
(1) it is under-collateralized; (2) the borrower corporation is undercapitalized; (3) direct or indirect
endorsement by high government officials like presence of marginal notes; (4) stockholders,
officers or agents of the borrower corporation are identified as cronies (of high government
officials); (5) deviation of use of loan proceeds from the purpose intended; (6) Use of corporate
layering; (7) non-feasibility of the project for which financing is being sought; and (8) extraordinary
speed in which the loan release was made. (See: PCGG vs. Desierto, G.R. No. 139296, November
23, 2007)
f. Receiving gift - As a general rule, a police officer, who receives gift from a person as a
token of generosity, may be held criminally liable Section 7 (d) of RA No. 6713, which punishes
public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity,
favor, entertainment, loan or anything of monetary value from any person in the course of their
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official duties or in connection with any operation being regulated by, or any transaction which
may be affected by the functions of their office.
Under Section 3 (d) of RA No.6713, "receiving any gift" includes the act of accepting directly
or indirectly, a gift from a person other than a member of his family or relative as defined in this
Act, even on the occasion of a family celebration or national festivity like Christmas, if the value
of the gift is neither nominal nor insignificant, or the gift is given in anticipation of, or in exchange
for, a favor.
If the value of the gift is nominal or insignificant, or the gift is not given in anticipation of,
or in exchange for, a favor, the police officer, who received such gift, is not liable under RA No.
6713. In Mabini vs. Raga, A.M. No. P-06-2150, June 21, 2006, complainant presented a letter
signed by Branch 28 employees, including respondent, thanking Governor Roño for his “donation”
of P1,500.00. However, there is no proof whatsoever that a solicitation took place. The cash gift
of P1,500.00 was received not by respondent Lilia alone, but together with eleven other employees
of Branch 28, to purchase lechon for their Christmas party; hence, the individual benefit of the
employees may be considered nominal. Neither does it appear from the evidence that the nominal
gift was given in anticipation of, or in exchange for, a favor. Thus, respondent Lilia cannot be
held liable under Republic Act No. 6713 because the governor’s gift, aside from being unsolicited,
was also nominal or insignificant in value; and not given in anticipation of, or in exchange for, a
favor. The receipt of the gift does not fall within the ambit of Section 7 (d) of RA No. 6713, in
relation to Sections 3 (c) and (d).
Moreover, Section 14 of RA No. 3019 recognizes as lawful receipt of unsolicited gift of
insignificant value of a gift given as a token of gratitude. This provision provides: Unsolicited gifts
or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or
friendship according to local customs or usage, shall be excepted from the provisions of this Act.
80. Plunder - Plunder is committed by any public officer who shall amass,
accumulate or acquire ill-gotten wealth through a combination or series of overt or
criminal acts (predicate crimes) in the aggregate amount or total value of at least
P50,000,000.00 by himself or in connivance with other persons.
The legislative declaration in R.A. No. 7659 that the crime of plunder under R.A. No.
7080 is a heinous offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se and it does not matter that
such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions
for plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts. (Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001)
Main plunderer - The main plunderer must be a public officer who, acting by himself
or in connivance with other persons, acquires, accumulates or amasses ill-gotten wealth.
However, a public officer can be held liable for plunder even if the one who
masterminded the plunder of public funds is a private individual (e.g., the allegations that
Napoles, a private individual, masterminded the plunder of pork barrels by legislators).
What is important is that the public officer in connivance with another person acquired
ill-gotten wealth. The private individual, who masterminded the plundering of pork barrel,
will be treated as secondary offender.
Secondary offenders - The participants of the crime of plunder (secondary
offenders) can be a public officer or a private individual. Participants who help the public
officer in committing plunder are also liable under R.A. No. 7080 on the basis of
conspiracy. (U.S. v. Ponte, G.R. No. L-5952, October 24, 1911) Moreover, under Section 2
of R.A. No. 7080, 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. The law in using the word “person” as a participant in the commission
of plunder did not distinguish a public officer from private individual. Hence, the word
“person” includes private individual applying the principle that where the law does not
distinguish, courts should not distinguish.Ubi lex non distinguit nec nos distinguere
debemus.
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In Napoles v. Sandiganbayan, G.R. No. 224162, November 7, 2017, Napoles was
charged of plunder although she is a private individual because of finding of conspiracy
with Senator Enrile in misappropriating his Priority Development Assistance Fund. The
Supreme Court sustained the ruling of the Sandiganbayan denying her petition for bail.
The participants in plunder can be members of the family, relatives by affinity or
consanguinity, business associates, or subordinates of the main plunderer or any other
persons.
Predicate crimes - The predicates of plunder are as follows:
1. Misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury;
2. Receiving, directly or indirectly, any commission, gift, share, percentage, kickback
or any other form of pecuniary benefits from any person and/or entity in connection with
any government contract or project or by reason of the office or position of the public
officer;
3. Illegal or fraudulent conveyance or disposition of assets belonging to government;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit particular
persons or special interests; or
6. By taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.
The concept of malversation as a predicate crime of plunder is the same as that of
malversation under Article 217 of the Revised Penal Code. (Gloria Macapagal Arroyo v.
People, G.R. No. 220598, July 19, 2016)
A public officer, who is not an accountable officer, cannot commit malversation.
However, he can commit an act of misappropriation, which is a predicate crime of plunder.
Under R.A. No. 7080, “misappropriation or conversion” is an overt act of plunder. Hence,
misappropriation may constitute malversation or qualified theft, which can be classified
as a predicate crime of plunder.
The plunderer must be benefitted from the raid on public treasury to consider this
predicate crime of plunder as present. The interpretation of the term “raid on a public
treasury” should be made in association with the words that immediately preceded it, and
that are “misappropriation, conversion, misuse or malversation of public funds.” All of these
predicate crimes presuppose that the plunderer benefitted from them. (See: Gloria
Macapagal Arroyo v. People, supra)
Combination or Series of Predicate Crimes - To be held liable for plunder, the
public officer must amass, accumulate or acquire ill-gotten wealth through a combination
or series of overt or criminal acts. The word “combination” means at least two different
predicate crimes; while the term “series” means at least two predicate crimes of the same
kind. (Ejercito v. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006) Thus, a single
predicate crime amounting to 50 million pesos is not constitutive of the crime of plunder.
The intention of the lawmakers is that if there is only one predicate crime, the offender
has to be prosecuted under the particular crime, which is already covered by existing laws.
What is punishable under the law are “acts of plunder,” which means that there should
be at least, two or more, predicate crimes. (See deliberation of the Bicameral Committee on
Justice, May 7, 1991)
Ill-gotten Wealth -Ill-gotten wealth means any asset, property, business enterprise
or material possession of any person within the purview of plunder acquired by him
directly or indirectly through dummies, nominees, agents, subordinates and/or business
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associates by any combination or series of predicate crimes of plunder. (Section 1 of R.A.
No. 7080)
In plunder, that the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired by the public officer is at least P50,000,000.00.
81. Qualifying circumstance of use of information technology - Use of information and
communications technologies in committing felony or offense under special law is a qualifying
circumstance under Section 6 of RA No. 10175.
Under Section 6 of RA No. 10175, the penalty for crimes punishable under special laws
committed through and with the use of information and communication technologies shall be one
degree higher than that provided the law. However, this provision requires the application of the
rules on graduation of penalties under the Revised Penal Code. Hence, Section 6 finds application
only if special law involved has adopted the technical nomenclature of the penalties of Revised
Penal Code.
82. Content-related offenses - Content-related offenses includes cyber libel, cybersex
and cyber child pornography. A prosecution for cybercrime offenses shall be without prejudice to
any liability for violation of any provision of the Revised Penal Code or special laws (Section 7).
Despite of Section 7, the offender cannot be prosecuted for cyber libel or cyber child pornography
under RA No. 10175 in addition to libel under RPC or child pornography under RA No. 9775 since
this will offend the constitutional rule on double jeopardy (Disini vs. Secretary of Justice, G.R.
No. 203335, February 11, 2014).
a. Cyber libel – Libel is not a constitutionally protected speech and that the government
has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually
not a new crime since Article 353, in relation to Article 355 of the Revised Penal Code, already
punishes it. Online defamation constitutes “similar means” for committing libel (Disini vs.
Secretary of Justice, G.R. No. 20335, February 18. 2014).
Cyber libel is an unlawful or prohibited act of libel as defined in Article 355 of RPC
committed through a computer system or any other similar means which may be devised in the
future. In case libel is committed through use of information and communications technologies,
the penalty for libel under Article 355 of RPC shall be increased one degree higher pursuant to
Section 6 of RA No. 10175.
Under Section 4 (c) (4) of RA No. 10175, cybercrime punishable includes content-related
offenses such as such cyber libel, which is an unlawful or prohibited act of libel as defined in
Article 355 of RPC committed through a computer system or any other similar means which may
be devised in the future.
The phrase “acts constitute the offense of cybercrime punishable under this Act” in Section
4 (c) (4) of RA No. 10175 means that libel defined under Revised Penal Code committed through
computer system (cyber libel) is punishable under RA No. 10175 and not under RPC.
Unfortunately, Section 8 of RA No. 10175, the penal provision of the law, fails to provide a penalty
for cyber libel under Section 4 (c) (4). Thus, the accused for committing cyber libel should be
prosecuted for libel under Revised Penal Code with the qualifying circumstance of use of
information and communications technologies under Section 6 of RA No. 10175. With this
qualifying circumstance, the penalty for libel under Article 355 of the Code shall be increased one
degree higher.
The place where libelous article was accessed by the offended party in the internet is not
equivalent to the place where the libelous article is “printed and first published”. To rule otherwise
is to allow the evil sought to be prevented by the amendment to Article 360, and that was the
indiscriminate laying of the venue in libel cases in distant, isolated or far-flung areas, to harass
an accused. At any rate, Article 360 still allow offended party to file the civil or criminal complaint
for internet libel in their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149,
G.R. No. 184800, May 5, 2010).
b. Prescription for cyber libel - The right of the State to prosecute a person who committed
a crime must be exercised within a reasonable time. The laws on prescription fix the reasonable
period within which the offender can be prosecuted. These periods are designed to compel the
State through the person in authority or its agent, and the offended party to immediately
prosecute the offender. That is why upon discovery of the crime by the State or offended party the
prescriptive period will commence to run, and upon institution of criminal action, the same will
be interrupted.
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If the crime is punishable under the Revised Penal Code such as murder or libel, Article 90
of the Revised Penal Code on prescriptive periods applies. Thus, murder case must be filed within
20 years with prosecutor’s office within 20 years from the discovery thereof in accordance with
Article 90 of the Code.
If the crime is punishable under the special law such BP Blg, 22, and RA No. 10175 on cybercrime, Act No. 3326 applies. Thus, case for violation of BP Blg. 22 must be filed within 4 years
from the expiration of the five-day period from receipt of the notice of dishonor in accordance with
Act No. 3326.
Under Act No. 3326, the prescriptive period for a crime under special law punished by
imprisonment of 6 years or more is 12 years. Most of the penalties under Section 8 of R.A. No.
10175 prescribe for cybercrimes such as cybersex defined under Section 4 thereof are
imprisonment of more than six years. Hence, as a general rule the prescriptive period for
cybercrime under R.A. No. 10175 is 12 years.
One of the cybercrimes defined under Section 4 of R.A. No. 10175 is cyber libel. Section 8
of R.A. No. 10175 prescribes penalties for all cybercrimes under Section 4 except cyber libel. It
seems that through oversight Congress failed to provide a penalty for cyber libel. Hence, an
offender, who committed libel through the internet, cannot be prosecuted for cyber libel under
Section 4 of R.A. No. 10175 simply because there is no penalty under Section 8 for committing
it.
However, libel through the internet is still punishable under Article 355 of the Revised Penal
Code. Section 6 of R.A. No. 10175, using information or communication technology in committing
a crime will upgrade the penalty for it by one degree. In sum, one, who committed libel through
the internet shall be prosecuted for libel under the Revised Penal Code with the qualifying
circumstance under R.A. No. 10175. He cannot be prosecuted for libel under Section 6 of R.A.
No. 10176 since this provision does not define a crime but merely provides a modifying
circumstance that will adjust the penalty one degree higher for a crime punishable under the
Revised Penal Code.
Since an offender in committing internet libel can only be prosecuted for libel qualified by
the circumstance of using information or communication technology under the Revised Penal
Code in relation to RA No. 10175, Article 90 of the Code on prescription applies.
By the same token, the period of prescriptive for homicide with the special aggravating
circumstance of use of loose firearm under Section 29 of RA No. 10883 is still governed by Article
90 of the Revised Penal Code, and not by Act 3326.
In Tolentino vs. People, G.R. No. 240310, August 06, 2018, the Supreme Court apply Article
90 of the Revised Penal Code to cyber libel.
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. In my submission, the oneyear prescriptive period for libel under Article 90 shall apply. However, the Supreme Court in
Tolentino vs. People, supra, applied the 15 years rule. In the said case, the Supreme Court ruled:
“Anent petitioner's claim that the action has prescribed, although Republic Act (RA) No.
10175, or the Cybercrime Prevention Act of 2012, does not categorically state the prescriptive period
for such action, the new prescriptive period for the crime of libel in relation to RA No. 10175 can be
derived from the penalty imposed on the said crime. Section 6 of RA No. 10175 provides that the
"penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal
Code (RPC), as amended, and special laws, as the case may be." As such, the former penalty
of prision correccional in it its minimum and medium periods is increased to prision corrreccional in
its maximum period to prision mayor in its minimum period. The new penalty, therefore, becomes
afflictive, following Section 25 of the RPC. Corrolarily, following Article 90 of the RPC, the crime of
libel in relation to RA 10175 now prescribes in fifteen (15) years. Thus, respondent Eva Rose Pua's
filing of the complaint on August 8, 2017 against petitioner's Facebook post dated April 29, 2015
was well within the prescriptive period for libel in relation to RA 10175.”
c. Cybersex – Cybersex under RA No. 10175 is committed by any person, who shall
wilfully engage, maintain, control, or operate, directly or indirectly, any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
The element of "engaging in a business" is necessary to constitute the illegal cybersex. The
law actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam. The
deliberations of the Bicameral Committee of Congress show a lack of intent to penalize a "private
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obscene showing between two private persons although. (Disini vs. Secretary of Justice, G.R. No.
203335, February 11, 2014).
If the commission of cybersex involves lascivious exhibition of sexual organs or sexual
activity of a child, the offender may be prosecuted for child pornography under RA No. 9775
qualified by the circumstance of using computer system under RA No. 10175. However, the
offender cannot be prosecuted for both cybersex and qualified (or cyber) child pornography
because of the rule on double jeopardy (Disini vs. Secretary of Justice, G.R. No. 203335, February
11, 2014).
If the commission of cybersex involves the maintenance of trafficked victim, the offender
may be prosecuted for trafficking in person under RA No. 9208.
d. Cyber child pornography - In RA No. 9208 child pornography is committed by
electronic, mechanical, digital, optical, magnetic or any other means, responsible persons are liable
for child pornography under RA No. 9775. RA No. 9775 is comprehensive enough to include cyber
pornography by requiring a child to show her private parts to a client through the internet. If child
pornography is committed through a computer system, the crime committed is cyber child
pornography under RA No. 10175 and the penalty is one degree higher.
83. Hazing - Hazing refers to any act that results in physical or psychological
suffering, harm, or injury inflicted on a recruit, neophyte, applicant, or member as part of an
initiation rite or practice made as a prerequisite for admission or a requirement for
continuing membership in a fraternity, sorority, or organization. Hazing includes paddling,
whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption
of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced
physical activity which is likely to adversely affect the physical and psychological health of
such recruit, neophyte, applicant, or member. Hazing shall also include any activity,
intentionally made or otherwise, by one person alone or acting with others, that tends to
humiliate or embarrass, degrade, abuse, or endanger, by requiring a recruit, neophyte,
applicant, or member to do menial, silly, or foolish tasks. ( Section 2 of RA No. 8049 as
amended by RA No. 11053)
The elements of the crime of hazing are: (1) That there is initiation rite or practice made
as a prerequisite for admission or a requirement for continuing membership in a fraternity,
sorority, or organization; (2) That during the initiation rite or practice, physical or psychological
suffering, harm, or injury is inflicted on a recruit, neophyte, applicant, or member of the fraternity,
sorority or organization; and (3) as a consequence of the hazing, death, rape, sodomy, or
mutilation results.
Initiation or initiation rites refer to ceremonies, practices, rituals, or other acts,
whether formal or informal, that a person must perform or take part in order to be accepted
into a fraternity, sorority, or organization as a full-fledged member. It includes ceremonies,
practices, rituals, and other acts in all stages of membership in a fraternity, sorority, or
organization. (Section 2 of RA No. 8049 as amended by RA No. 11053)
Organization refers to an organized body of people which includes, but is not limited to,
any club, association, group, fraternity, and sorority. This t er m sh all inc l ud e t h e Ar m ed
Fo r c e s o f t h e Philippines (AFP), the Philippine National Police (PNP), the Philippine Military
Academy (PMA), the Philippine National Police Academy (PNPA), and other similar uniformed
service-learning institutions. (Section 2 of RA No. 8049 as amended by RA No. 11053) The
Philippine Merchant Marine Academy is included in the term organization within the meaning of
the law. People v. Bayabos, G.R. No. 171222, February 18, 2015) Company or private corporation
is covered by the hazing law. Under RA No. 8049, in no case shall hazing be made a requirement
for employment in any business or corporation.
Failure to allege that the physical or psychological harm were employed as prerequisite
for admission (or a requirement for continuing membership) would prevent the successful
prosecution of the criminal responsibility of the accused, either as principal or as accomplice, for
the crime of hazing. Plain reference to a technical term “hazing” is insufficient and incomplete, as
it is but a characterization of the acts allegedly committed and thus a mere conclusion of law.
(People v. Bayabos, supra) Prior to RA No. 11053, the crime of hazing is confined to a situation
where the infliction of physical or psychological harm is a prerequisite for admission in a
fraternity, sorority, or organization. However, there are occasions where the organization will first
admit the neophyte as member, and then, hazing will be made as post-requisite for admission.
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Thus, RA No. 11053 expanded the concept of hazing by covering initiation rite or practice made
not only as a prerequisite for admission but also as a requirement for continuing membership
in a fraternity, sorority, or organization.
Prior to RA No. 11053, the hazing is punishable under RA No. 8049 if as a consequence
of hazing, death, rape, sodomy, mutilation or serious, less serious or slight physical injuries
results. RA No. 8049 does not prescribe penalty for mere infliction of psychological harm. RA
No. 8049 as amended by RA No. 11053, declares all forms of hazing shall be prohibited in
fraternities, sororities, and organizations. Section 14 thereof prescribes for penalties for
all forms of hazing. However, the penalty is higher w here death, rape, sodomy, mutilation
results from hazing.
a. Malum Prohibitum - Prior to R.A. No. 8049, good faith is a defense in homicide where
the victim is killed during hazing. The consent of the victim and lack of intent to kill of the accused
would negate dolo, which is an important element of homicide. Hence, the crime committed is
only reckless imprudence resulting in homicide. (Villareal v. People, G.R. No. 151258, February 1,
2012) Now, the participants of the hazing with or without dolo are liable for violation of R.A. No.
8049 if the neophyte died as a consequence thereof.
Instead of amending Revised Penal Code which penalizes mala in se, where good faith is a
defense, the Congress created a special law on hazing, founded upon the principle of mala
prohibita where good faith is not a defense.
The deliberation of the Senate shows that what is important is not the intention to kill the
neophyte during the hazing but the result of the act of hazing. Recognizing the malum prohibitum
characteristic of hazing, RA No. 8049 as amended, provides that any person charged with the said
crime shall not be entitled to the mitigating circumstance that there was no intention to commit
so grave a wrong.
Also, the framers of the law intended that the consent of the victim to be injured shall not
be a defense in hazing. The very act of inflicting physical or psychological pain is a punishable
act. Death is just an aggravating circumstance (Dungo v. People, G.R. No. 209464, July 1, 2015)
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 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.
b. Presence - 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 pen alty 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.
c. Actual participation - The penalty for hazing is also higher if the person actually
participated in the conduct of the hazing. The actual participants are liable for hazing even
if they are not members of the fraternity, sorority, or organization.
R.A. No. 8049 as amended by RA No. 11053 presents a novel provision that introduces
a disputable presumption of actual participation; and which modifies the concept of conspiracy.
Section 14 thereof provides that the presence of any person, even if such person is not a
member of the fraternity, sorority, or organization, during the hazing is prima facie evidence
of participation therein as a principal unless such person or persons prevented the commission
of the acts punishable herein or promptly reported the same to the law enforcement authorities
if they can do so without peril to their person or their family.
This provision is unique because a disputable presumption arises from the mere
presence of the offender during the hazing, which can be rebutted by proving that the accused
took steps to prevent the commission of the hazing or promptly reports the same to the
authorities.
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Generally, mere presence at the scene of the crime does not in itself amount to conspiracy.
Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal conspiracy
can be proven by the prima facie evidence due to their presence during the hazing, unless they
prevented the commission of the acts therein or reported the matter to the authorities. (Dungo v.
People, supra; 2018 Bar Exam)
d. Planning – 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.
e. Adviser – The law also punishes the adviser of a fraternity, sorority, or o r g a n i z a t i o n
w h o i s p r e s e n t w h e n t h e a c t s 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)
f. Inducement – Officers or members of a fraternity, sorority, or organization, who
knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat, are liable for hazing. These officers or members are penalized, not because of their
direct participation in the infliction of harm, but due to their indispensable cooperation in the
crime by inducing the victim to attend the hazing (Dungo v. People, supra; 2018 Bar Exam).
However, this rule is only applicable if the inducer is an officer, or member of a fraternity,
sorority, or organization.
The accused claim that the information avers a criminal charge of hazing by actual
participation, but the only offense proved during the trial was hazing by inducement. The
information alleged that the accused during a planned initiation rite and being then officers of
APO fraternity used personal violence upon a neophyte resulting to his death. The “planned
initiation rite” as stated in the information included the act of inducing victim to attend it. Accused
not only induced victim to be present at the resort, but they actually brought him there. The
hazing would not have been accomplished were it not for the acts of the petitioners that induced
the victim to be present. Hence, they are liable for hazing. (Dungo v. People, supra)
g. Incumbent officers - The incumbent officers of the fraternity, sorority, or
organization concerned shall be jointly liable with those members who actually participated in
the hazing.
h. Owner or lessee – The law punishes the owner or lessee of the place where hazing is
conducted as principal for hazing, when he 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. (2018 Bar Exam)
Under the old version of RA No. 8048, only owner of the place of hazing is liable.
However, under this law as amended by RA No. 11053, a lessee can be held also be held
liable for hazing. Under the old rule, such owner is only liabl e as an accomplice. Now, he is
responsible as principal. Moreover, under the new rule, promptly reporting the matter to the
authorities is an additional defense for such owner.
i. Parents – Under the law, 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 for hazing when they have actual knowledge of the hazing conducted therein but
failed t o t ak e any actio n to pr event t he same fro m 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.
Under the old version of RA No. 8048, parent is only liable as an accomplice. Under
this law as amended by RA No. 11053, he is responsible as principal. Moreover, under the
new rule, promptly reporting the matter to the authorities is an additional defense for such
parent.
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j. School authorities - School authorities including faculty members as well as
barangay, municipal, or city officials shall be liable as an accomplice for hazing conducted
by fraternities, sororities, and other organizations, if it can be shown that: (1) the school or
barangay, municipal, or city officials allowed or consented to th e conduct of hazing; or (2)
where there is actual knowledge 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.
Even though school authorities and faculty members have had no direct participation in
hazing, they may nonetheless be charged as accomplices if it is shown that (1) hazing occurred;
(2) the accused are school authorities or faculty members; and (3) they consented to or failed to
take preventive action against hazing in spite actual knowledge thereof (People v. Bayabos, supra)
or to report the matter to the authorities.
The corresponding responsibilities of the principal, accomplice, and accessory are distinct
from each other. As long as the commission of the offense (hazing) can be duly established in
evidence, the determination of the liability of the accomplice can proceed independently of that of
the principal. (People v. Bayabos, supra)
Under Section 7 of RA No. 8049 as amended by RA No. 11053, the faculty
adviser or advisers, who accepted his role after being selected by an accredited
fraternity, sorority, or organization, shall be responsible for monitoring the activities of
the fraternity, sorority, or organization. In case of violation of any of the provisions of this Act,
it is presumed that the faculty adviser has knowledge and consented to the commission of any
of the unlawful acts stated therein.
Under Section 4, 5, 10 and 11 of RA No. 8049 as amended by RA No. 11053,
initiation rites are allowed the fraternity, sorority or organization obtained approvable from
school authority, or punong barangay, or city or municipal mayor, authorities upon written
application undertaking that no harm of any kind shall be committed. During approved
initiation rites, at least two school or barangay, city or municipal representatives must be
present. If hazing is still committed despite their presence, no liability shall attach to them
unless it is proven that they failed to perform an overt act to prevent or stop the commission
thereof.
Failure to provide school representatives during the approved initiation rites is also
punishable.
85. Violence against women - Accused has a dating and sexual relationship with AAA resulting
in BBB's birth. He failed to provide BBB support ever since the latter was just a year old. Accused
is charged with psychological violence against woman under Section 5 (i) of RA No. 9262 for failure
to give support which "caused mental or emotional anguish, public ridicule or humiliation to AAA
and BBB. However, no evidence was presented to show that deprivation of support caused either
AAA or BBB any mental or emotional anguish. However, the accused can be convicted of economic
violence against woman under Section 5 (e), which is necessarily included in the charge of
psychological violence against woman under Section 5 (i) of RA No. 9262. Deprivation or denial of
support, by itself and even without the additional element of psychological violence, is already
specifically penalized therein as economic violence. (Melgar vs. People, G.R. No. 223477, February
14, 2018)
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