Top 25 Bar Questions in Criminal Law (2014)

THE PATTERNS OF CRIME:
REVIEW OF THE TOP ISSUES/CONCEPTS

IN CRIMINAL LAW
(1979 2014 BAR EXAMINATIONS)
By:
Prof. RAMON S. ESGUERRA
1. ESTAFA
(ALL TIME 1975 2014 asked 43 times)
(RECENT - 2000-2014 asked 19 times)
ESTAFA
Swindling (estafa). Any person who shall defraud another

by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prisin correccional in its maximum

period to prisin mayor in its minimum period, if the
amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years.
ESTAFA
Three general ways of committing Estafa:
a. with unfaithfulness or abuse of confidence

(Art. 315, par. 1);
b. by means of false pretenses or fraudulent
acts (Art. 315, par. 2); and
c. through fraudulent means (Art. 315, par. 3).
ESTAFA
Elements of Estafa IN GENERAL:
1. That the accused defrauded another by

a. abuse of confidence, or
b. by means of deceit.
2. That damage or prejudice capable of

pecuniary estimation is caused to
a. the offended party, or

b. third person.
ESTAFA
DECEIT is NOT an essential requisite of estafa

with abuse of confidence.
As to second general element of DAMAGE, it
should be capable of pecuniary estimation,
since the penalty for the crime is based on the
amount of the damage.
The intent of defraud another is always an
element.
There is no estafa through negligence.
ESTAFA THROUGH ABUSE OF CONFIDENCE
Par. 1 (a)
(a) Estafa with unfaithfulness by altering the
substance, quantity, or quality of anything of value
Elements:
i. That the offender has an onerous obligation to

deliver something of value;
ii. That he alters its substance, quantity, or quality;
and
iii. That damage or prejudice is caused to another.
Par. 1 (a)
There must be an onerous obligation.
There is estafa even though such obligation

be based on an immoral or illegal
consideration.
Thus, estafa may arise even if the thing to be

delivered is not subject of lawful commerce
(i.e. opium).
Par. 1 (b)
(b): misappropriating or converting money, goods,
or other personal property OR denying having
received such money, goods, or other personal
property
Elements:
i. That money, goods, or other personal property be

received by the offender either in:
- trust (Trust Receipts Law),
- on commission,
- for administration, or
- under any obligation involving duty to
return the very same thing;
Par. 1 (b)
ii. There is (a) misappropriation or conversion of such

property by the offender, OR (b) denial of such
receipt;
iii. There is prejudice to another; and
iv. Demand was made by the offended to the offender.
N.B. The 4th element is not necessary where there is

evidence of misappropriation of goods by the
defendant.
Estafa with abuse of Theft
confidence
Offender acquires the Offender acquires only

juridical possession of the material possession of the
property property
Offender receives the Offender takes the thing
thing from the offended from the offended party
party
Additional test: In theft, upon delivery of the thing to

the offender, the owner expects an immediate return of
the thing to him.
Estafa with abuse of confidence Malversation
The offenders are entrusted with funds or property

Both are continuing offenses
The funds or property are always Involves public funds or property
private
The offender is a private Offender is usually a public
individual or a public officer who officer who is accountable for
is not accountable for public funds public funds or property
or property
The crime is committed by The crime is committed by
misappropriating, converting or appropriating, taking or
denying having received money, misappropriating or consenting,
goods or other personal property or through abandonment or
negligence, permitting any other
person to take the public funds or
property
Par. 1 (c)
(c): estafa by taking undue advantage of the
signature of the offended party in blank
Elements:
i. That the paper with the signature of the

offended party be in blank;
ii. That the offended party should have delivered it

to the offender;
Par. 1 (c)
iii. That above the signature, a document is written
by offender without authority to do so;
iv. That the document so written creates a liability
of, or causes damage to the offended party or
any third person.
N.B. The paper with the signature in blank MUST

BE DELIVERED by the offended party to the
offender (otherwise, crime is falsification of
instrument).
ESTAFA BY MEANS OF DECEIT
Par. 2
Elements of Article 315, par. 2:
1. There must be a false pretense, fraudulent act or
fraudulent means;
2. Such false pretense, fraudulent act or fraudulent means
must be made or executed prior to or simultaneously
with the commission of the fraud;
3. The offended party must have relied on the false
pretense, fraudulent act, or fraudulent means, that is, he
was induced to part with his money or property because
of the false pretense, fraudulent act or fraudulent means;
4. As a result thereof, the offended party suffered damage.
Par. 2 (a)
Three ways of committing estafa under this

provision:
a. By using a fictitious name;

b. By falsely pretending to possess power,
influence, qualifications, property, credit,
agency, business or imaginary transactions;
c. And through other similar deceits
Par. 2 (c)
(c): pretending to have bribed any Government
employee
Illustration: When a person asks money from another

for the alleged purpose of bribing a government
employee but appropriated the money for his own
use.
N.B.: "without prejudice to an action for calumny"

means that the offender may also be charged with
defamation which the government employee allegedly
bribed may deem proper to bring against the offender.
Par. 2 (d)
(d): postdating a check in payment of an obligation when
the offender had no funds in the bank, or his funds
were not sufficient to cover the amount
Elements:
1. That the offender postdated a check, or issued a check

in payment of an obligation
2. That such postdating or issuing was done when:

a. offender had no funds, or
b. funds deposited were not sufficient
Par. 2 (d)
N.B. The check must be genuine and not falsified, otherwise,
the crime committed is estafa under paragraph 2(a), not 2(d).
The issuance of a check must NOT be for a pre-existing

obligation. It MUST be for an obligation contracted at the
time of the issuance or delivery of the check.
When check is issued in substitution of a promissory note,

it is in payment of a pre-existing obligation.
When the check is issued by a guarantor, there is no estafa

because it is not in payment of an obligation.
Par. 2 (d)
Prima facie evidence of deceit:
Failure of the drawer of the check to deposit the

amount necessary to cover his check within 3
days from receipt of notice from the bank and/or
the payee or holder that said check has been
dishonored for lack or insufficiency of funds.
Par. 2 (e)
(e): Estafa by obtaining food or accommodation at a hotel, etc.
Three ways of committing estafa under the this provision:

i. By obtaining food, refreshment, or accommodation at a
hotel, etc. without paying therefor, with intent to defraud
the proprietor or manager thereof;
ii. By obtaining credit at any of said establishments by the use
of false pretenses; or
iii. By abandoning or surreptitiously removing any part of his
baggage from any of said establishments after obtaining
credit, food, refreshment, or accommodation therein,
without paying therefor.
ESTAFA THROUGH OTHER FRAUDULENT
MEANS
Par. 3 (a)
(a): Estafa by inducing another to sign any document
Elements:
i. That the offender induced the offended party to

sign a document;
ii. That deceit be employed to make him sign the
document;
iii. That the offended party personally signed the
document; and
iv. That prejudice is caused to the offended party.
ESTAFA THROUGH OTHER FRAUDULENT
MEANS
Par. 3 (c)
(c): Estafa by removing, concealing, or destroying
documents
Elements:
i. That there be court record, office files, documents
or any other papers;
ii. That the offender removed, concealed or
destroyed any of them; and
iii. That the offender had intent to defraud another.
N.B. If no intent to defraud, the act of destroying

court records will only be malicious mischief.
Estafa under Infidelity in the custody
Art. 315, par. 3 (c) of documents under
Art. 226
Manner of committing offenses is the same
The offender is a private The offender is a public

individual or even a public officer who is officially
officer who is not officially entrusted with the
entrusted with the document
documents
There is intent to defraud Intent to defraud not an

element in this crime
JURISPRUDENCE ON ESTAFA
Lee v. People (2005)
The words "convert" and "misappropriate" as used in
the aforequoted law connote an act of using or
disposing of another's property as if it were one's
own, or of devoting it to a purpose or use different
from that agreed upon.
In a prosecution for estafa, demand is not necessary
where there is evidence of misappropriation or
conversion. However, failure to account upon
demand, for funds or property held in trust, is
circumstantial evidence of misappropriation.
People v. Hernandez (2002)
A person who is convicted of illegal recruitment may, in

addition, be convicted of estafa under Art. 315 (2) of the
Revised Penal Code provided the elements of estafa are
present.
Estafa under Article 315, paragraph 2 of the Revised Penal

Code, is committed by any person who defrauds another by
using a fictitious name, or falsely pretends to possess power,
influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of similar deceits
executed prior to or simultaneously with the commission of
the fraud.
Milla v. People (2012)
In a case for estafa through falsification of

public documents, accuseds claim that his
issuance of two checks as refund before the
institution of the criminal complaint against
him novated his obligation to the private
respondents to being purely civil is bereft of
merit.
Tanenggee v. People (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 commission of estafa, not by the falsification of
the document. Therefore, as a special complex crime, the
falsification of the public, official, or commercial document is
only a necessary means to commit estafa.
People vs Daud (2014)
A person who is convicted of illegal recruitment

may, in addition, be convicted of estafa under Art. 315 (2)
of the Revised Penal Code provided the elements of
estafa are present. The offense of illegal recruitment is
malum prohibitum where the criminal intent of the
accused is not necessary for conviction, while estafa is
malum in se where the criminal intent of the accused is
crucial for conviction. Conviction for offenses under the
Labor Code does not bar conviction for offenses
punishable by other laws.
Pablo v. People (2004)
Deceit is defined as the false representation of a matter of

fact, whether by words or conduct, by false or misleading
allegations, or by concealment of that which should have
been disclosed which deceives or is intended to deceive
another so that he shall act upon it to his legal injury.
False pretense is any deceitful practice or device by which

another is led to part with the property in the thing taken.
Gamboa v. People (2014)
An agent who entrusts the principals property to a

sub-agent is not immediately liable for estafa through abuse
of confidence, in the absence of a stipulation prohibiting the
appointment of a sub-agent. It must be pointed out that the
law on agency in our jurisdiction allows the appointment by
an agent of a substitute or sub-agent in the absence of an
express agreement to the contrary between the agent and
the principal.
BAR QUESTIONS
and
SUGGESTED ANSWERS
BAR QUESTIONS and SUGGESTED ANSWERS
Q: How is malversation distinguished from estafa?
(1999 Bar)
A: Malversation differs from estafa in that

malversation is committed by an accountable public
officer involving public funds or property under his
custody and accountability; while estafa is committed
by non- accountable public officer or private
individual involving funds or property for which he is
not accountable to the government.
X draws a check upon request of Y, the payee, who
told X that he would merely show the check to his
creditor to gain more time to pay his account. The
check bounced upon presentation by the creditor.
Under the circumstances, who can be prosecuted for
estafa based on the dishonored check?
(A) Y as the one who negotiated the check contrary to

the agreement
(B) X as the drawer of the check
(C) Both X and Y based on conspiracy
(D) None. (2011 Bar)
Q: A and B agreed to meet at the latter's house to

discuss B's financial problems. On his way, one of A's
car tires blew up. Before A left following the meeting,
he asked B to lend him (A) money to buy a new spare
tire. B had temporarily exhausted his bank deposits,
leaving a zero balance. Anticipating, however, a
replenishment of his account soon, B issued A a
postdated check with which A negotiated for a new
tire. When presented, the check bounced for lack of
funds. The tire company filed a criminal case against A
and B. What would be the criminal liability, if any, of
each of the two accused? (2003 Bar)
A: A who negotiated the unfunded check of B in buying a
new tire for his car may only be prosecuted for estafa if
he was aware at the time of such negotiation that the
check has no sufficient funds in the drawee bank;
otherwise, he is not criminally liable.
B who accommodated A with his check may

nevertheless be prosecuted under BP 22 for having
issued the check, knowing at the time of issuance that it
has no funds in the bank and that A will negotiate it to
buy a new tire, i.e., for value. B may not be prosecuted
for estafa because the facts indicate that he is not
actuated by intent to defraud in issuing the check which
A negotiated. Obviously, B issued the postdated check
only to help A: criminal intent or dolo is absent.
Q: A sold a washing machine to B on credit, with the
understanding that B could return the appliance within
two weeks if, after testing the same, B decided not to buy
it. Two weeks lapsed without B returning the appliance.
A found out that B had sold the washing machine to a
third party- Is B liable for estafa? Why? (2002 Bar)
A: No, B is not liable for estafa because he is not just an
entrustee of the washing machine which he sold; he is the
owner thereof by virtue of the sale of the washing
machine to him. The sale being on credit, B as buyer is
only liable for the unpaid price of the washing machine;
his obligation is only a civil obligation. There is no
felonious misappropriation that could constitute estafa.
Q: Malo, a clerk of court of a trial court, promised the
accused in a drug case pending before the court, that
he would convince the judge to acquit him for a
consideration of P5 million. The accused agreed and
delivered the money, through his lawyer, to the clerk
of court. The judge, not knowing of the deal,
proceeded to rule on the evidence and convicted the
accused.
Malo was charged with estafa under Article 315

because he misrepresented that he had influence,
when he actually had none. Is the charge correct?
(2014 Bar)
A: Yes. Malo may be prosecuted for Estafa under Art.

315(2)(a) where a person falsely pretended to possess
influence in defrauding another. Here, Malo used falsely
represented that he has influence to convince the judge, in
order to obtain the consideration of P5Million. There is still
Estafa even if the subject of the crime is illegal because
Article 315(2)(a) punishes the mere act of defrauding another
by falsely pretending that he possesses influence. The law
does not require that the false pretension must be committed
for a lawful cause only.
SYNDICATED ESTAFA
(ECONOMIC SABOTAGE)
Presidential Decree No. 1689

SYNDICATED ESTAFA
Syndicated estafa is estafa or swindling as defined

under Arts. 315 and 316 of the RPC, committed by a
syndicate, and the fraud results in misappropriation of:
a. Moneys contributed by stockholders or members of

rural banks, cooperatives, samahang nayons or farmers
associations; or
b. Funds solicited by corporations/associations from

the general public (Section 1, P.D. No. 1689).
SYNDICATED ESTAFA
Syndicate, defined:
A group of five or more persons formed with the
intention of carrying out an unlawful or illegal act,
transaction, scheme or enterprise.
N.B. When the defraudation results in

misappropriation of funds mentioned in Sec. 1 but is
not committed by a syndicate, the penalty is reclusion
temporal to reclusion perpetua if the amount of the fraud
exceeds P100,000 (Section 1, P.D. No. 1689).
SYNDICATED ESTAFA
Illustrations:
Ponzi Scheme:
Promoted by Charles Ponzi in 1920.
An investment program that offers highly impossible
returns and pays these returns to early investors out of the
capital contributed by the latter investors.
Works only if there is an increasing number of new
investors joining the scheme (People vs. Balasa, 2004).
Pyramiding or Pyramid Scam (e.g. Multitel Intl Case;
Panata Foundation Case - - People vs. Balasa, et. al.)
JURISPRUDENCE ON SYNDICATED ESTAFA
People v. Balasa, et. al. (1998)
To defraud the general public, the appellants established a

non-stock, non-profit foundation and registered with the
SEC. While the Articles of Incorporation stated that the
Board may collect dues and fees from members to finance
Panata Foundation, Inc., the officers and employees of the
same openly solicited money and investments from
members under a double or treble your deposit scheme.
The appellants promised the credulous public quick

financial gains on their investments. To bolster the illusion,
Panatas officers claimed that the deposits would be
invested in a world bank to double or treble the interests
in 21 and 30 days, respectively.
2. PERSONS CRIMINALLY
LIABLE
PERSONS CRIMINALLY LIABLE
When a single individual commits a crime,

there is no difficulty in determining his
participation in the commission thereof.
However, when two or more persons are

involved, it is necessary to determine the
participation of each.
PERSONS CRIMINALLY LIABLE :
ART. 16
Who are criminally liable. The following are
criminally liable for grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:

1. Principals
2. Accomplices.
ART. 17
Principals. The following are considered principals:
1. Those who take a direct part in the execution of the

act; (principals by direct participation)
2. Those who directly force or induce others to commit

it; (principals by inducement)
3. Those who cooperate in the commission of the offense

by another act without which it would not have been
accomplished. (principals by indispensable
cooperation)
PRINCIPALS BY DIRECT PARTICIPATION
The principal by direct participation PERSONALLY

TAKES PART IN THE EXECUTION OF THE ACT
constituting the crime.
Two or more persons who took part in the

commission of the crime are principals by direct
participation, when the following requisites are present:
a. That they participated in the criminal resolution; and

b. That they carried out their plan and personally took
part in its execution by acts which directly tended to
the same end.
First requisite Participation in the criminal

resolution
Two or more persons are said to have participated
in the criminal resolution when they were in
conspiracy at the time of the commission of the
crime.
It is well settled that a person may be convicted for
the criminal act of another where, between them,
there has been conspiracy or unity of purpose and
intention in the commission of the crime charged.
Second requisite that the culprits carried out

their plan and personally took part in its
execution, by acts which directly tended to the
same end.
The principals by direct participation must

be at the scene of the crime, personally taking part
in its execution.
PRINCIPALS BY INDUCEMENT
Two ways of becoming a principal by inducement:
1. by directly forcing another to commit a crime

either:
a. By using irresistible force, or
b. By causing uncontrollable fear.
2. by directly inducing another to commit a crime

either:
a. By giving price, or offering reward or promise.
b. By using words of command.
Requisites:
1. That the inducement be made directly with the
intention of procuring the commission of the
crime; and
A thoughtless expression without intention to
produce the result is not an inducement to commit
a crime.
The inducement may be by acts of command,
advice, or through influence, or agreement for
consideration.
2. That such inducement be the determining cause

of the commission of the crime by the material
executor.
The words of advice of the influence must have

actually moved the hands of the principal by
direct participation.
PRINCIPALS BY INDISPENSABLE COOPERATION
Requisites:
1. Participation in the criminal resolution, that is,
there is either anterior conspiracy or unity of
criminal purpose and intention immediately
before the commission of the crime charged;
and
2. Cooperation in the commission of the offense
by performing another act, without which it
would not have been accomplished.
ART. 18
Accomplices. Accomplices are those persons

who, not being included in Art. 17, cooperate in the
execution of the offense by previous or
simultaneous acts.
ACCOMPLICES
Requisites:
1. That there be community of design; that is, knowing the
criminal design of the principal by direct participation,
he concurs with the latter in his purpose;
2. That he cooperates in the execution of the offense by
previous or simultaneous acts, with the intention of
supplying material or moral aid in the execution of the
crime in an efficacious way; and
3. That there be a relation between the acts done by the
principal and those attributed to the person charged as
accomplice.
ACCOMPLICES
N.B.
The one who had the original criminal design is
the person who committed the resulting crime,
and will be held liable as principal.
The accomplice, after concurring in the criminal
purpose of the principal, cooperates by previous
or simultaneous acts.
When the cooperation is by simultaneous act, the
accomplice takes part while the crime is being
committed by the principal by direct participation
or immediately thereafter.
The accomplice in crimes against persons should
not have inflicted the more or most serious
wounds.
ART. 19
Accessories. Accessories are those who, having
knowledge of the commission of the crime, and
without having participated therein, either as
principals or accomplices, take part subsequent to
its commission in any of the following manners:
1. By profiting themselves or assisting the offender to

profit by the effects of the crime.
2. By concealing or destroying the body of the crime,

or the effects or instruments thereof, in order to
prevent its discovery.
ART. 19
3. By harboring, concealing, or assisting in the

escape of the principals of the crime, provided the
accessory acts with abuse of his public functions or
whenever the author of the crime is guilty of treason,
parricide, murder, or an attempt to take the life of the
Chief Executive, or is known to be habitually guilty of
some other crime.
ACCESSORIES
N.B.
The ACCESSORIES are not liable for light
felonies because in the commission of light
felonies, the social wrong as well as the
individual prejudice is so small that penal
sanction is deemed not necessary for accessories.
Even if the principal is unknown, or at large, or
being tried separately, the case against the
accessory may proceed as long as the
commission of the offense is established. (Vino v.
People, G.R. No. 84163, 19 October 1989)
Art. 19, par. 1
SPECIFIC ACTS OF THE ACCESSORIES
1. By profiting themselves or assisting the
offender to profit by the effects of the crime
The accessory must receive the property from the
principal. He should not take it without the
consent of the principal, otherwise, he is not an
accessory but a principal in the crime of theft.
The accessory profits or assists the offender to
profit from the effects of the crime which, must be
the natural and logical consequence of the crime
perpetrated by the offender (i.e. if a person accepts
a reward for finding a stolen vehicle, he is not
considered an accessory to theft).
Art. 19, par. 2
2. By concealing or destroying the body of the

crime to prevent its discovery.
BODY OF THE CRIME corpus delicti which

means that a specific offense was in fact
committed by someone
The accessorys objective must be to prevent the

discovery of the crime, and such specific intent
must be proved.
Art. 19, par. 3
3. By harboring, concealing or assisting in

the escape of the principal of the crime
Two (2) classes of accessories under this

paragraph:
a. Public officers who harbor conceal or assist in
the escape of the principal of any crime
(which is not a light felony) with abuse of his
public functions.
Art. 19, par. 3
Requisites:
1. The accessory is a public officer;
2. He harbors, conceals, or assists in the escape
of the principal;
3. The public officer acts with abuse of his public
functions; and
4. The crime committed by the principal is any
crime, provided it is not a light felony.
Art. 19, par. 3
b. Private persons who harbor, conceal or assist in the
escape of the author of the crime guilty of treason,
parricide, murder, or an attempt against the life of the
President, or who is known to be habitually guilty of
some other crime.
Requisites:
1. The accessory is a private person;
2. He harbors, conceals or assists in the escape of the
author of the crime; and
3. The crime committed by the principal is either: (a)
treason, (b) parricide, (c) murder, (d) attempt against
the life of the Chief Executive, or (e) the principal is
known to be habitually guilty of some other crime.
RULES RELATIVE TO LIGHT FELONIES
a. Light felonies are punishable only when they have
been consummated.
b. But when light felonies are committed against

persons or property, the are punishable even if they
are only in the attempted or frustrated stage of the
execution.
c. Only principals and accomplices are liable for light

felonies.
d. Accessories are not liable for light felonies, even if

they are committed against persons or property.
JURISPRUDENCE
United States v. Indanan (1913)
Where the inducement offered by the accused is of
such a nature and made in such a way that it becomes the
determining cause of the crime, and such inducement was
offered with the intention of producing that result, then the
accused is guilty by inducement of the crime committed by
the person so induced. The inducement to the crime must be
intentional on the part of the inducer and must be made
directly for the purpose in view.
People v. Montealegre (1988)

The two acted in concert, with Capalad actually
stabbing Camantigue seven times and the accused-appellant
holding on to the victim's hands to prevent him from
drawing his pistol and defending himself. While it is true that
the accused- appellant did not himself commit the act of
stabbing, he was nonetheless equally guilty thereof for
having prevented Camantigue from resisting the attack
against him. The accused-appellant was a principal by
JURISPRUDENCE
People v. Pilola (2003)
To hold a person liable as an accomplice, two elements

must concur: (a) the community of criminal design;
that is, knowing the criminal design of the principal by
direct participation, he concurs with the latter in his
purpose; (b) the performance of previous or
simultaneous acts that are not indispensable to the
commission of the crime.
JURISPRUDENCE
People v. Doctolero (1991)
Appellants contend that the murders occurred

as a consequence of a sudden thought or impulse, thus
negating a common criminal design in their minds.
This pretension must be rejected since one can be an
accomplice even if he did not know of the actual crime
intended by the principal provided he was aware that
it was an illicit act.
JURISPRUDENCE
People v. Mariano (2000)
Rubys act of driving the car where the corpse of Michelle
was hidden, her resistance to stop the car when chased by the
police and to immediately open the luggage compartment as
requested by the police, her act of lying to the police by claiming
that the box in the compartment contained only dirty clothes, and
her refusal to open said box sufficiently indicate knowledge of the
crime and assistance to Ruth Mariano in concealing the corpus
delicti to prevent its discovery. However, since she is the sister of
accused-appellant Ruth, their relationship exempts appellant Ruby
Mariano from criminal liability under Art. 20 of The Revised Penal
Code. The reason for exemption is obvious; it is based on ties of
blood and the preservation of the cleanliness of one's name, which
compels one to conceal crimes committed by relatives so near as
those mentioned in the above-quoted article.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Zeno and Primo asked Bert to give them a sketch of the
location of Andys house since they wanted to kill him. Bert
agreed and drew them the sketch. Zeno and Primo drove to
the place and killed Andy. What crime did Bert commit?
(A) Accomplice to murder, since his cooperation was

minimal.
(B) Accessory to murder, since his map facilitated the
escape of the two.
(C) None, since he took no step to take part in executing the
crime.
(D) Principal to murder, since he acted in conspiracy with
Zeno and Primo. (2011 Bar)
Q: Mr. Red was drinking with his buddies, Mr. White and Mr.
Blue when he saw Mr. Green with his former girlfriend, Ms.
Yellow. Already drunk, Mr. Red declared in a loud voice that
if he could not have Ms. Yellow, no one can. He then
proceeded to the mens room but told Mr. White and Mr. Blue
to take care of Mr. Green. Mr. Blue and Mr. White asked Mr.
Red what he meant but Mr. Red simply said, "You already
know what I want," and then left. Mr. Blue and Mr. White
proceeded to kill Mr. Green and hurt Ms. Yellow. (4%)
(A) What, if any, are the respective liabilities of Mr. Red, Mr.
White and Mr. Blue for the death of Mr. Green?
(B) What, if any, are the respective liabilities of Mr. Red, Mr.
White and Mr. Blue for the injuries of Ms. Yellow? (2014 Bar)
(A) Mr. Red is not liable. He has no direct participation in the

killing of Mr. Green as Mr. Red did not inflict any stab wounds
upon Mr. Green. Neither is he a principal by inducement because
it was not shown that Mr. Red was himself determined to commit
the felony and he asked Mr. White and Mr. Blue to kill Mr. Green.
Mr. Reds words You already know what I want is a vague and
equivocal statement. It cannot be interpreted as a direct and strong
command to kill Mr. Green. There is also no conspiracy in this case
to indict Mr. Red in the killing of Mr. Green. Under Article 8, RPC,
conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. It was not shown that Mr. Red, by his acts or words,
come to an agreement with Mr. White and Mr. Blue about the
killing of Mr. Green and decide to kill the latter.
Mr. White and Mr. Blue shall be liable for Homicide under
Article 249, RPC, as principals by direct participation for the
killing of Mr. Green. Under Article 249, RPC, a person is liable
for homicide when he kills another without the attendance of
any of the circumstances under Article 248, RPC. Here, there
were no such attending circumstances presented in the
question.
(B) Mr. Red is also not liable for the injury inflicted upon Ms.
Yellow for the same reasons given above. Mr. White and Mr.
Blue are liable for physical injures they inflicted upon Ms.
Yellow as principals by direct participation.
Q: A asked B to kill C because of a grave injustice

done to A by C. A promised B a reward. B was
willing to kill C, not so much because of the reward
promised to him but because he also had his own
long-standing grudge against C, who had wronged
him in the past. If C is killed by B, would A be liable
as a principal by inducement? (2002 Bar)
A: No. A would not be liable as a principal by

inducement because the reward he promised B is
not the sole impelling reason which made B to
kill C. To bring about criminal liability of a co-
principal, the inducement made by the inducer
must be the sole consideration which caused the
person induced to commit the crime and without
which the crime would not have been
committed. The facts of the case indicate that B,
the killer supposedly induced by A, had his own
reason to kill C out of a long standing grudge.
3. JUSTIFYING
CIRCUMSTANCES
JUSTIFYING CIRCUMSTANCES : ART. 11
Justifying circumstances. The following do not incur any

criminal liability:
1. Anyone who acts in defense of his person or rights,

provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to

prevent or repel it.
Third. Lack of sufficient provocation on the part of the person

defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural or
adopted brothers or sisters, or of his relatives by affinity in
the same degrees, and those by consanguinity within the
fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation
was given by the person attacked, that the one making
defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites
mentioned in the first circumstance of this Art. are present
and that the person defending be not induced by revenge,
resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury,

does an act which causes damage to another, provided
that the following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that

done to avoid it;
Third. That there be no other practical and less harmful

means of preventing it.
5. Any person who acts in the fulfillment of a

duty or in the lawful exercise of a right or office.
6. Any person who acts in obedience to an order

issued by a superior for some lawful purpose.
Par. 1 - SELF-DEFENSE
Self-defense includes not only the defense of the person or
body of the one assaulted but also that of his rights, that is,
those rights the enjoyment of which is protected by law.
Requisites:
1. There must be unlawful aggression.
This is an indispensable requisite.
Unlawful aggression is an actual physical assault or at least a

threat to attack or inflict physical injury upon a person. A mere
threatening or intimidating attitude is not considered unlawful
aggression, unless the threat is offensive and menacing,
manifestly showing the wrongful intent to cause injury. There
must be an actual, sudden, unexpected attack or imminent
danger thereof, which puts the defendants life in real peril.
2. There must be peril to ones life which may either be:
a. actual that the danger must be present, that is, actually in

existence, or
b. imminent- that the danger is on the point of happening. It is

not required that the attack already begins, for it may be too late.
N.B. A slap on the face constitutes unlawful aggression since the

face represents a person and his dignity. Slapping it is a serious
personal attack.
Test: Does the person invoking the defense believe, in due

exercise of his reason, his life or limb is in danger? (Senoja v.
People, 2004)
3. Reasonable necessity of the means employed to prevent or
repel it
The reasonableness of the necessity depends upon the
circumstances particularly the time and location where the
aggression took place.
The means employed by the person making a defense
must be rationally necessary to prevent or repel an
unlawful aggression.
The reasonableness of the means adopted is not one of
mathematical calculation or "material commensurability
between the means of attack and defense but the
imminent danger against the subject of the attack as
perceived by the defender and the instinct more than
reason that moves the defender to repel the attack.
The reasonableness of the means used will

depend upon the NATURE and QUALITY of the
weapon used by the aggressor, his PHYSICAL
CONDITION, SIZE and other circumstances, and
those of the person defending himself, and also the
place and occasion of the assault. (People v. Rabanal,
G.R. No. 146687, 22 August 2002.)
4. Lack of sufficient provocation on the part of the person

defending himself
Requisite is complied with when:

a. When no provocation at all was given to the aggressor by
the person defending himself; or
b. When, even if a provocation was given, it was not
sufficient; or
c. When, even if the provocation was sufficient, it was not
given by the person defending himself; or
d. When, even if provocation was given by the person
defending himself, it was not proximate and immediate to
the act of aggression.
Battered Woman Syndrome (BWS):
This refers to a scientifically defined pattern of

psychological and behavioral symptoms found in women living in
battering relationships as a result of cumulative abuse (Sec. 3[c],
R.A. No. 9262).
Under Section 28 of Republic Act 9262, Victim-

survivors who are found by the courts to be suffering from
battered woman syndrome do not incur any criminal and
civil liability, notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under
the Revised Penal Code.
People v. Genosa (2004)
The Battered Woman Syndrome is characterized by a

cycle of violence, which has three phases:
a. TENSION-BUILDING PHASE: minor battering, slight abuse

occurs; womans placatory behavior legitimizes the attackers
belief that he has a right to abuse her.
b. ACUTE-BATTERING INCIDENT: serious and brutal abuse
begins; woman develops sense of detachment from the
attacks.
c. TRANQUIL/NON-VIOLENT PHASE: batterer shows tender
and nurturing behavior, promises never to hurt the woman
again. She believes hes changed.
Par. 2 DEFENSE OF RELATIVE
RELATIVES THAT CAN BE DEFENDED
1. Spouse
2. Ascendants
3. Descendants
4. Legitimate, natural or adopted brothers and sisters, or
relatives by affinity in the same degrees.
5. Relatives by consanguinity within the fourth civil degree.
Relatives by affinity, are those who, because of marriage, are

parents-in-law, son or daughter-in-law, and brothers or sisters-
in-law.
Consanguinity refers to blood relatives. Brothers and sisters are

within the second civil degree; uncle and niece or aunt and
nephew are within the third civil degree; and first cousins are
within the fourth civil degree.
Requisites:
1. Unlawful aggression;
Unlawful aggression may not exist as a
matter of fact, it can be made to depend upon
the honest belief of the one making a defense.
Ex. The sons of A honestly believed that their

father was the victim of an unlawful aggression
when in fact it was their father who attacked B.
If they killed B under such circumstance, they
are justified.
2. Reasonable necessity of the means employed

to prevent or repel it;
The gauge of reasonable necessity of the

means employed to repel the aggression as
against ones self or in defense of a relative is to
be found in the situation as IT APPEARS TO
THE PERSON REPELLING THE AGGRESSION
(the defender).
3. In case the provocation was given by the person
attacked, the one making a defense had no part
therein.
There is still legitimate defense of relative even
if the relative being defended has given provocation,
provided that the one defending such relative has no
part in the provocation.
N.B. Like in self-defense, the motive of the person

defending himself or his relative is immaterial.
Par. 3 DEFENSE OF STRANGERS
Requisites:
a. Unlawful aggression;
b. Reasonable necessity of the means employed
to prevent or repel it;
c. The person defending be not induced by
revenge, resentment or other evil motive.
N.B. Unlike in self-defense where motive of the

person defending himself is immaterial, in defense of
strangers, the person defending must not be
motivated by revenge, resentment, or other evil
motive.
Par. 3 DEFENSE OF STRANGERS
Who are deemed strangers?
Any person not included in the enumeration of

relatives mentioned in paragraph 2 of this article, is
considered stranger for the purpose of paragraph 3.
BASIS: What one may do in his defense, another may do

for him. The ordinary man would not stand idly by and
see his companion killed without attempting to save his
life.
Par. 4 STATE OF NECESSITY
Any person who, in order to avoid an evil or injury, does
an act which causes damage to another.
N.B. DAMAGE TO ANOTHER covers injury to persons

and damage to property.
Requisites:
1. That the evil sought to be avoided actually exists;

The evil must actually exist and not merely
expected or anticipated or may happen in the future.
2. That the injury feared be greater than that done to

avoid it;
The greater injury feared should not have been

brought about by the negligence or imprudence, more
so, the willful inaction of the actor. The evil which
brought about the greater evil must not result from a
violation of law by the actor. (Ty v. People, G.R. No.
149275, 27 September 2004)
3. That there be no other practical and less harmful means

of preventing it.
Under paragraph 4, Article 11 of the Revised Penal

Code, infliction of damage or injury to another so that a
greater evil or injury may not befall ones self may be
justified only if it is taken as a last resort and with the least
possible prejudice to another. If there is another way to
avoid the injury without causing damage or injury to
another or, if there is no such other way but the damage to
another may be minimized while avoiding an evil or injury
to ones self, then such course should be taken. (People v.
Punzalan, Jr., G.R. No. 199892, 10 December 2012).
General rule: No liability in justifying circumstances

because there is no crime.
Exception: There is CIVIL LIABILITY under this

paragraph. It is borne by the persons benefited by the
act. They shall be liable in proportion to the benefit
which they may have been received (Art. 101, par. 4,
RPC).
Tan v. Standard Vacuum Oil, Co. (1952)
Anita Tan is the owner of the house of strong materials.

On May 3, 1949, the Standard Vacuum Oil Company
ordered the delivery to the garage of Rural Transit Company
1,925 gallons of gasoline using a gasoline tank-truck trailer.
The truck was driven by Sto. Domingo, who was helped by
Igmidio Rico. While the gasoline was being discharged to
the underground tank, it caught fire, whereupon Sto.
Domingo drove the truck across the road and upon reaching
the middle of the street he abandoned the truck which
continued moving to the opposite side of the first street
causing the buildings on that side to be burned and
destroyed. The house of Anita Tan was among those
destroyed and for its repair she spent P12,000.
Issue: Who may be held civilly liable?
Held: Considering the above quoted law and facts, the cause of
action against the Rural Transit Company can hardly be
disputed, it appearing that the damage caused to Anita Tan was
brought about mainly because of the desire of driver Sto.
Domingo to avoid greater evil or harm, which would have been
the case had he not brought the tank-truck trailer to the middle
of the street, for then the fire would have caused the explosion
of the gasoline deposit of the company which would have
resulted in a conflagration of much greater proportion and
consequences to the houses nearby or surrounding it. It cannot
be denied that this company is one of those for whose benefit a
greater harm has been prevented, and as such it comes within
the purview of said penal provision.
Par. 5 FULFILLMENT OF A DUTY OR LAWFUL
EXERCISE OF RIGHT OR OFFICE
Requisites:
1. That the accused acted in the performance of a duty or in
the lawful exercise of a right or office; and
2. That the injury caused or the offense committed be the
necessary consequence of the due performance of duty or
the lawful exercise of such right or office.
People v. Oanis (1943)

When two (2) police officers tasked to arrest a
purported criminal saw a sleeping man in the alleged
residence of the person to be arrested and assumed that the
man was said criminal, and shot him instead of verifying his
identity, the justifying circumstance is not present since the
officers exceeded in the performance of their duties.
Par. 6 OBEDIENCE TO AN ORDER ISSUED FOR
SOME LAWFUL PURPOSE
Requisites:
1. That an order has been issued by a superior.

2. That such order must be for some lawful purpose.
3. That the means used by the subordinate to carry
out said order is lawful.
When the order is not for a lawful purpose, the

subordinate who obeyed it is criminally liable.
The subordinate is not liable for carrying out an

illegal order of his superior, if he is not aware of the
illegality of the order and he is not negligent. (People v.
Beronilla, 1955).
JURISPRUDENCE
Marzonia vs. People (2006)
Using a penknife to mortally wound an assailant is not a

reasonable way of repelling unlawful aggression
committed by means of fist blow attacks.
People vs. Dijan (2002)
The number of wounds sustained by the victim would

itself likewise negate Dijans claim of defense of a stranger.
Certainly, the nature and number of wounds inflicted by

an accused on the victim should be significant indicia in
determining the plausibility of the defense plea.
JURISPRUDENCE
People v. Enfectana (2002)

Once self-defense is raised, the burden of proving the
elements of the claim shifts to him who invokes it.
Ty v. People (2004)
If the evil sought to be avoided is merely expected or
anticipated or may happen in the future, the defense of
an uncontrollable fear of a greater injury is not
applicable.
Moreover, for the defense of state of necessity to be

availing, the greater injury feared should not have been
brought about by the negligence or imprudence, more
so, the willful inaction of the actor.
JURISPRUDENCE
Mamagun v. People (2007)
To be sure, acts in the fulfillment of a duty, without

more, do not completely justify the petitioner police
officers firing the fatal gunshot at the victim.
However, in the absence of the equally necessary

justifying circumstance that the injury or offense
committed be the necessary consequence of the due
performance of such duty, there can only be incomplete
justification, a privileged mitigating circumstance under
Articles 13 and 69 of the Revised Penal Code.
JURISPRUDENCE
People v. Concillado (2011)
The Court, in sustaining accuseds conviction, ruled that when an

accused admits the commission of the crime but claims the
justifying circumstance of self-defense, the burden of proof is
shifted to him. When the accused miserably fails to discharge his
burden, he does not deserve an acquittal. The general rule in
criminal cases is that the prosecution has the burden of proof to
establish the guilt of the accused beyond reasonable doubt.
However, once the accused admits the commission of the offense
charged but raises a justifying circumstance as a defense, the
burden of proof is shifted to him. He cannot rely on the weakness
of the evidence for the prosecution for even if it is weak, it cannot
be doubted especially after he himself has admitted the killing.
This is because a judicial confession constitutes evidence of a
high order. Moreover, the nature, number and location of the
wounds sustained by the victim disprove a plea of self-defense.
JURISPRUDENCE
People v. Malicdem (2012)
The claim of self-defense is not consistent with the claim

that accident is the cause of the death of the victim. There
is no such defense as accidental self-defense in the
realm of criminal law. Self-defense necessarily
implies a deliberate and positive overt act of the
accused to prevent or repel an unlawful aggression of
another with the use of reasonable means. The
defense is based on necessity which is the supreme
and irresistible master of men of all human affairs,
and of the law.
JURISPRUDENCE
Flores v. People (2013)
The continuous shooting by accused which caused

the fatal gunshot wounds were not necessary and
reasonable to prevent the claimed unlawful
aggression from the victim as the latter was already
lying flat on the ground after he was first shot on the
shoulder.
JURISPRUDENCE
Medina v. People (2014)
In order that defense of a relative is to be appreciated, the

following requisites must concur: (1) unlawful aggression
by the victim; (2) reasonable necessity of the means
employed to prevent or repel the aggression; and (3) in
case the provocation was given by the person attacked,
that the person making the defense took no part in the
provocation. Like in self-defense, it is the accused who
carries the burden to prove convincingly the attendance
and concurrence of these requisites because his invocation
of this defense amounts to an admission of having inflicted
the fatal injury on the victim.
JURISPRUDENCE
Medina v. People (2014)
In invoking the defense of a relative, Ricardo states that his

immediate impulse upon seeing Randolf being attacked by
Lino with a knife was to get his own weapon and to aid in
the defense of Randolf. But that theory was inconsistent
with his declaration at the trial that Linos fatal wound had
been self-inflicted, as it presupposes direct responsibility
for inflicting the mortal wound. Thus, his defense was
unworthy of belief due to its incongruity with human
experience.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Osang, a married woman in her early twenties, was

sleeping on a banig on the floor of their nipa hut beside
the seashore when she was awakened by the act of a man
mounting her. Thinking that it was her husband,
Gardo,who had returned from fishing in the sea, Osang
continued her sleep but allowed the man, who was
actually their neighbor, Julio, to have sexual intercourse
with her. After Julio satisfied himself, he said "Salamat
Osang" as he turned to leave. Only then did Osang realize
that the man was not her husband. Enraged, Osang
grabbed a balisong from the wall and stabbed Julio to
death. When tried for homicide, Osang claimed defense
of honor. Should the claim be sustained? (2000 Bar)
A: No, Osangs claim of defense of honor should not be
sustained because the aggression on her honor had ceased
when she stabbed the aggressor. In defense of rights under
paragraph 1, Art. 11 of the RPC, It is required inter alia that
there be (1) unlawful aggression, and (2) reasonable necessity
of the means employed to prevent or repel it. The unlawful
aggression must be continuing when the aggressor was
injured or disabled by the person making a defense.
But if the aggression that was begun by the injured or

disabled party already ceased to exist when the accused
attacked him, as in the case at bar, the attack made is a
retaliation, and not a defense. Paragraph 1, Article 11 of the
Code does not govern.
Hence, Osang's act of stabbing Julio to death after the sexual

intercourse was finished, is not defense of honor but an
immediate vindication of a grave offense committed against
her, which is only mitigating.
Q: When A arrived home, he found B raping his daughter.

Upon seeing A, B ran away. A took his gun and shot B,
killing him. Charged with homicide, A claimed he acted in
defense of his daughters honor. Is A correct? If not, can A
claim the benefit of any mitigating circumstance or
circumstances? (2002 Bar)
A: No, A cannot validly invoke defense of his daughters

honor in having killed B since the rape was already
consummated. Moreover, B already ran away, hence, there
was no aggression to defend against and no defense to
speak of.
Q: A chanced upon three men who were attacking B with fist
blows. C, one of the men, was about to stab B with a knife.
Not knowing that B was actually the aggressor because he
had earlier challenged the three men to a fight, A shot C as
the latter was about to stab B. May A invoke the defense of a
stranger as a justifying circumstance in his favor? Why?
(2002 Bar)
A: Yes. A may invoke the justifying circumstance of defense
of stranger since he was not involved in the fight and he
shot C when the latter was about to stab B. There being no
indication that A was induced by revenge, resentment or
any other evil motive in shooting C, his act is justified
under par. 3, Article 11 of the Revised Penal Code, as
amended.
The husband has for a long time physically and mentally

tortured his wife. After one episode of beating, the wife
took the husbands gun and shot him dead. Under the
circumstances, her act constitutes:
(A) mitigating vindication of grave offense.

(B) battered woman syndrome, a complete self-defense.
(C) incomplete self-defense.
(D) mitigating passion and obfuscation. (2011 Bar)
Q: Distinguish clearly but briefly between justifying

and exempting circumstances in criminal law (2004
Bar).
A: Justifying circumstance affects the act, not the
actor, while exempting circumstance affects the actor,
not the act. In justifying circumstance, no criminal
and, generally, no civil liability is incurred; while in
exempting circumstance, civil liability is generally
incurred although there is no criminal liability.
Q: Ms. A had been married to Mr. B for 10 years. Since their
marriage, Mr. B had been jobless and a drunkard, preferring to stay
with his "barkadas" until the wee hours of the morning. Ms. A was
the breadwinner and attended to the needs of their three (3)
growing children. Many times, when Mr. B was drunk, he would
beat Ms. A and their three (3) children, and shout invectives against
them. In fact, in one of the beating incidents, Ms. A suffered a deep
stab wound on her tummy that required a prolonged stay in the
hospital. Due to the beatings and verbal abuses committed against
her, she consulted a psychologist several times, as she was slowly
beginning to lose her mind. One night, when Mr. B arrived dead
drunk, he suddenly stabbed Ms. A several times while shouting
invectives against her. Defending herself from the attack, Ms. A
grappled for the possession of a knife and she succeeded. She then
stabbed Mr. B several times which caused his instantaneous death.
Medico-Legal Report showed that the husband suffered three (3)
stab wounds. Can Ms. A validly put up a defense? Explain. (2014
Bar)
A: Yes. Ms. A can validly invoke self-defense. Under Article 11(1)

of the RPC, to be considered a justifying circumstance of self-
defense, the following must concur: (a) unlawful aggression; (b)
reasonable necessity of the means employed to prevent or repel it;
and (c) lack of sufficient provocation on the part of the person
defending himself.
In this case, all the elements of self-defense are present. First, there
was unlawful aggression on the part of Mr. B who repeatedly
stabbed Ms. A. Second, the knife used by Ms. A was reasonably
necessary to prevent or repel the aggression of Mr. B. Third, there
was no provocation on the part of Ms. A when she defended
herself.
Ms. A may also claim the defense of Battered Woman Syndrome
(BWS) under Section 26, R.A. No. 9262 or the Anti-Violence
Against Women and Their Children Act of 2004, which provides
that a victim-survivor who are found by the courts to be suffering
from battered woman syndrome do not incur any criminal and
civil liability notwithstanding the absence of any of the elements
for justifying circumstances of self-defense under the Revised
Penal Code (RPC). Under Section 3(c) of R.A. No. 9262, Battered
Woman Syndrome refers to a scientifically defined pattern of
psychological and behavioral symptoms found in women living
in battering relations as a result of cumulative abuse. In this case,
Ms. A can be deemed as a person suffering from BWS because
due to the beatings and verbal abuses committed against her by
Mr. B, she was slowly beginning to lose her mind.
4. ORDINARY MITIGATING
CIRCUMSTANCES
ORDINARY MITIGATING CIRCUMSTNACES
Art. 13 par. 1
The following are mitigating circumstances:
1. Incomplete Justifying or Exempting Circumstance: When

all the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not
attendant.
N.B. Incomplete self-defense, defense of relatives, defense of stranger

- in these three (3) classes of defense, UNLAWFUL
AGGRESSION must always be present. It is an indispensable
requisite (Reyes, p. 247).
Art. 13
2. That the offender is under eighteen years of age or over

seventy years. x x x
In People v. Hermie Jacinto (G.R. No. 182239, 16 March
2011), the child in conflict with the law was found guilty of
qualified rape punishable by death. Supreme Court
considered the minority of the accused as privilege
mitigating circumstance. Notwithstanding the Anti-Death
Penalty Law (R.A. 9346) and the privileged mitigating
circumstance of minority, the Supreme Court sentenced the
accused to reclusion perpetua. The Supreme Court held that
for purposes of determining the proper penalty because of
the privileged mitigating circumstance of minority, the
penalty of death is still the penalty to be reckoned with.
Art. 13 par. 2
2. That the offender is under eighteen years of age or
over seventy years. x x x
See also:
1. People v. Larraaga and People v. Agacer;

and
2. pertinent provisions of R.A. No. 9344, as
amended
Art. 13 par. 3
3. That the offender had no intention to commit so
grave a wrong as that committed.
The lack of intent to commit a wrong so grave is an

internal state. It is weighed based on the weapon used,
the part of the body injured, the injury inflicted and
the manner it is inflicted. The fact that the accused
used a 9-inch hunting knife in attacking the victim
from behind, without giving him an opportunity to
defend himself, clearly shows that he intended to do
what he actually did, and he must be held responsible
therefor, without the benefit of this mitigating
circumstance. (People v. Callet, 2002)
Art. 13 par. 4
4. That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
Provocation is any unjust or improper conduct or act of

the offended party, capable of exciting, inciting, or irritating
anyone (Reyes, p. 266). The provocation sufficient to mitigate
an offense must be proportionate to the gravity of the
retaliatory act (People v. Leonor, 1999).
Requisites:
1. That the provocation must be sufficient;
2. That it must originate from the offended party; and
3. That the provocation must be immediate to the act,
i.e., to the commission of the crime by the person who
is provoked.
Art. 13 par. 5
5. That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito) his spouse,
ascendants, descendants, legitimate, natural or adopted brothers or
sisters or relatives by affinity within the same degrees.
Vindication of grave offense cannot co-exist with passion or

obfuscation (People v. Pangal, 1977).
The grave offense to be vindicated need not be unlawful i.e.

elopement of daughter or sister. In People v. Diokno (1982), it was
held that what is decisive is the fact that the accused, responsive to
what is a traditional norm of conduct, reacted in a manner which for
them was necessary under the circumstances. That was a fulfillment
of what family honor and affection require. The aggressor who did
them wrong should not go unpunished. This is not to justify what
was done. It offers though an explanation.
Art. 13
PROVOCATION VINDICATION
It is made directly only to the The grave offense may be
person committing the offense committed also against the
offenders relatives mentioned
in the law.
The cause that brought about The offended party must have
the provocation need not be a done a grave offense to the
grave offense. offender or his relatives
mentioned in the law.
It is necessary that the The vindication of the grave
provocation or threat offense may be proximate,
immediately preceded the act. which admits of an interval of
time between the grave offense
done by the offended party and
the commission of the crime.
Art. 13 par. 6
6. That of having acted upon an impulse so
powerful as naturally to have produced passion or
obfuscation.
Requisites:
a. The accused acted upon an impulse; and
b. The impulse must be so powerful that it naturally
produce passion or obfuscation in him.
The only causes which mitigate the criminal

responsibility for the loss of self-control are such as
originate from legitimate feelings, not those which
arise from vicious, unworthy, and immoral passions.
(U.S. v. Hicks, 1909).
Art. 13 par. 7
7. That the offender had voluntarily surrendered
himself to a person in authority or his agents, or that he
had voluntarily confessed his guilt before the court prior
to the presentation of the evidence for the prosecution.
Requisites of voluntary surrender:

a. That the offender had not been actually arrested;
b. That the offender surrendered himself to a person in
authority or to the latters agent; and
c. That the surrender was voluntary.
Art. 13 par. 7
7. That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of the
evidence for the prosecution.
Requisites of plea of guilty:

a. That the offender spontaneously confessed his guilt;
b. That the confession of guilty was made in open court, that is,
before the competent court that is to try the case; and
c. That the confession of guilt was made prior to the presentation
of evidence for the prosecution.
N.B. When the offer of plea of guilty came after prosecution

rested its case, it is not mitigating (People v. Crisostomo, G.R.
No. L-32243 April 15, 1988).
Art. 13 par. 8
8. That the offender is deaf and dumb, blind or otherwise
suffering some physical defect which thus restricts his means
of action, defense, or communication with his fellow beings.
The fact that the accused suffers from a physical defect,

a severed left hand, does not mean that he should
automatically be credited with the mitigating circumstance. In
order for this condition to be appreciated, it must be shown
that such physical defect limited his means to act, defend
himself or communicate with his fellow beings to such an
extent that he did not have complete freedom of action,
consequently resulting in diminution of the element of
voluntariness. In fact, despite his handicap, the accused
nevertheless managed to attack, overcome and fatally stab his
victim (People v. Deopante, 1996).
Art. 13 par. 9
9. Such illness of the offender as would diminish

the exercise of the will-power of the offender without
however depriving him of consciousness of his acts.
Requisites:
1. That the illness of the offender must diminish the
exercise of his will-power.
2. That such illness should not deprive the offender
of consciousness of his acts. (See People v. Basin,
G.R. No. 130654, 28 July 1999).
Art. 13 par. 10
10. And, finally, any other circumstance of a similar nature
and analogous to those above mentioned.
The act of testifying for the prosecution, without previous

discharge, by Lorenzo Soberano should be considered in his
favor as a mitigating circumstance analogous to a plea of
guilty. (People v. Navasca, 1977).
In Canta v. People (2001), where the accused voluntarily took

the cow to the municipal hall to place it unconditionally in the
custody of the authorities and thus saved them the trouble of
having to recover the cow from him. This circumstance can be
considered analogous to voluntary surrender and should be
considered in favor of petitioner.
JURISPRUDENCE
In Emilio Cimafranca v. Sandiganbayan (G.R. No. 94408,

14 February 1991), the Supreme Court held that the return
of the funds malversed is not a defense and will not be an
exempting circumstance nor a ground for extinguishing
the criminal liability of the accused but it can be a
mitigating circumstance analogous to voluntary surrender.
In the instant case, the return of the property malversed

was not mitigating because it took the accused several
years before he returned the government property. In fact,
when the engine was returned, it was already scrap and
the revolver was rusty and had to be reblued.
JURISPRUDENCE
Pelonia v. People (2006)
The mitigating circumstance of having acted in the

immediate vindication of a grave offense was properly
appreciated in this case. Petitioner was humiliated in front
of his guests and kin in his own house. It is settled,
however, that the mitigating circumstance of sufficient
provocation cannot be considered apart from the circumstance of
vindication of a grave offense. These two circumstances arose
from one and the same incident so that they should be
considered as only one mitigating circumstance.
JURISPRUDENCE
People v. Bates (2003)
Passion and obfuscation may not be properly appreciated in favor of

appellant. To be considered as a mitigating circumstance, passion or
obfuscation must arise from lawful sentiments and not from a spirit of
lawlessness or revenge or from anger and resentment. In the present
case, clearly, Marcelo was infuriated upon seeing his brother, Carlito,
shot by Jose. However, a distinction must be between the first time that
Marcelo hacked Jose and the second time that the former hacked the
latter. When Marcelo hacked Jose right after seeing the latter shoot at
Carlito, and if appellant refrained from doing anything else after that,
he could have validly invoked the mitigating circumstance of passion
and obfuscation. But when, upon seeing his brother Carlito dead,
Marcelo went back to Jose, who by then was already prostrate on the
ground and hardly moving, hacking Jose again was a clear case of
someone acting out of anger in the spirit of revenge.
JURISPRUDENCE
People v. Dulos (2004)
Voluntary surrender cannot be appreciated where there was

no conscious effort on the part of the accused to voluntarily
surrender. Here, there was no conscious effort on the part of
the accused to voluntary surrender to the military
authorities when he went to Camp Siongco after the fateful
incidents. As he himself admitted, he was not placed under
custody by the military authorities as he was free to roam
around as he pleased.
There is no voluntary surrender also where an accused

merely surrendered the gun he used in the killing, without
surrendering his person to the authorities.
JURISPRUDENCE
Andrada v. People (2005)
Andrada, after attacking the victim, ran away. He was

apprehended by responding officers at a waiting shed.
For voluntary surrender to be appreciated, the
surrender must be spontaneous, made in such a manner
that it shows the interest of the accused to surrender
unconditionally to the authorities, either because he
acknowledges his guilt or wishes to save them the
trouble and expenses that would be necessarily
incurred in his search and capture. Here, the surrender
was not spontaneous.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: An accused charged with the crime of homicide

pleaded "not guilty" during the preliminary
investigation before the Municipal Court. Upon the
elevation of the case to the Regional Trial Court the
Court of competent jurisdiction, he pleaded guilty
freely and voluntarily upon arraignment. Can his
plea of guilty before the RTC be considered
spontaneous and thus entitle him to the mitigating
circumstance of spontaneous plea of guilty
under Art. 13(7), RPC? (1999 Bar)
A: Yes, his plea of guilty before the Regional Trial

Court can be considered spontaneous, for which
he is entitled to the mitigating circumstance of
plea of guilty. His plea of not guilty before the
Municipal Court is immaterial as it was made
during preliminary investigation only and before
a court not competent to render judgment.
Q: After killing the victim, the accused absconded. He

succeeded in eluding the police until he surfaced and
surrendered to the authorities about two years later.
Charged with murder, he pleaded not guilty but, after
the prosecution had presented two witnesses
implicating him to the crime, he changed his plea to
that of guilty. Should the mitigating circumstances of
voluntary surrender and plea of guilty be considered
in favor of the accused? (1997 Bar)
A: Voluntary surrender should be considered as a

mitigating circumstance. After two years, the police
were still unaware of the whereabouts of the
accused and the latter could have continued to
elude arrest. Accordingly, the surrender of the
accused should be considered mitigating because it
was done spontaneously, indicative of the remorse
or repentance on the part of said accused and
therefore, by his surrender, the accused saved the
Government expenses, efforts, and time.
Alternative Answer:
Voluntary surrender may not be appreciated in favor
of the accused. Two years is too long a time to consider
the surrender as spontaneous (People us. Ablao, 183
SCRA 658). For sure the government had already
incurred considerable efforts and expenses in looking
for the accused.
Plea of guilty can no longer be appreciated as a

mitigating circumstance because the prosecution had
already started with the presentation of its evidence
(Art. 13, par. 7. Revised Penal Code).
In malversation of public funds, the offenders return

of the amount malversed has the following effect
(A) It is exculpatory.
(B) It is inculpatory, an admission of the commission
of the crime.
(C) The imposable penalty will depend on what was
not returned.
(D) It is mitigating. (2011 Bar)
The presence of a mitigating circumstance in a crime
(A) increases the penalty to its maximum period.

(B) changes the gravity of the offense.
(C) affects the imposable penalty, depending on
other modifying circumstances.
(D) automatically reduces the penalty. (2011 Bar)
5. AGGRAVATING
CIRCUMSTANCES
AGGRAVATING CIRCUMSTANCES
Art. 14
Aggravating circumstances are those which, if attendant in
the commission of the crime, serve to increase the penalty
without, however, exceeding the maximum of the
penalty provided by law for the offense.
They are based on the greater perversity of the offender

manifested in the commission of the felony as shown by:
motivating power itself;

the place of commission;
the means and ways employed;
the time; or
the personal circumstances of the offender, or of the
offended party.
Art. 14
Aggravating circumstances. The following are
aggravating circumstances:
1. That advantage be taken by the offender of his public

position.
2. That the crime be committed in contempt of or with

insult to the public authorities.
3. That the act be committed with insult or in disregard of

the respect due to the offended party on account of his
rank, age, or sex, or that it be committed in the dwelling
of the offended party, if the latter has not given
provocation.
Art. 14
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the palace of the Chief

Executive, or in his presence, or where public authorities are
engaged in the discharge of their duties, or in a place dedicated to
religious worship.
6. That the crime be committed in the night time, or in an

uninhabited place, or by a band, whenever such circumstances
may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted

together in the commission of an offense, it shall be deemed to
have been committed by a band.
Art. 14
7. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic or other
calamity or misfortune.
8. That the crime be committed with the aid of armed men or

persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code.
10. That the offender has been previously punished of an

offense to which the law attaches an equal or greater penalty
or for two or more crimes to which it attaches a lighter penalty.
Art. 14
11. That the crime be committed in consideration of a price,
reward, or promise.
12. That the crime be committed by means of inundation, fire,

poison, explosion, stranding of a vessel or intentional damage
thereto, derailment of a locomotive, or by the use of any other
artifice involving great waste and ruin.
13. That the act be committed with evident premeditation.
14. That the craft, fraud or disguise be employed.
15. That advantage be taken of superior strength, or means be

employed to weaken the defense.
Art. 14
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes

against the person, employing means, methods, or forms in the
execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense
which the offended party might make.
17. That means be employed or circumstances brought about

which add ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a

way not intended for the purpose.
Art. 14
19. That as a means to the commission of a crime a wall,

roof, floor, door, or window be broken.
20. That the crime be committed with the aid of persons

under fifteen years of age or by means of motor vehicles,
motorized watercraft, airships, or other similar means.
(As amended by Rep. Act No. 5438, approved Sept. 9,
1968).
21. That the wrong done in the commission of the crime

be deliberately augmented by causing other wrong not
necessary for its commission.
Art. 14
Kinds:
1. GENERIC Those that can generally apply to all

crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19,
and 20 except by means of motor vehicles.
2. SPECIFIC Those that apply only to particular
crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21.
3. QUALIFYING Those that change the nature of the
crime. Art. 248 enumerates the qualifying AC which
qualify the killing of person to murder.
4. INHERENT Those that must accompany the
Art. 14
GENERIC AC QUALIFYING AC
The effect of a generic AC, The effect of a qualifying

not offset by any mitigating AC is not only to give the
circumstance, is to increase crime its proper and
the penalty which should exclusive name but also to
be imposed upon the place the author thereof in
accused to the MAXIMUM such a situation as to
PERIOD. deserve no other penalty
than that specially
prescribed by law for said
crime.
Art. 14
GENERIC AC QUALIFYING AC
A generic aggravating A qualifying AC cannot be

circumstance may be offset by a mitigating
compensated by a circumstance.
mitigating circumstance.
Generic and qualifying aggravating circumstances

must be alleged in the information in order to be
appreciated in the judgment for criminal liability,
otherwise the same will not be considered by the court
even if proved during the trial. (People v. Legaspi, 2001)
Art. 14 par. 1
Par. 1. THAT ADVANTAGE BE TAKEN BY THE
OFFENDER OF HIS PUBLIC POSITION.
The public officer must use the influence, prestige or

ascendancy which his office gives him as the means by
which he realizes his purpose. The essence of the matter is
presented in the inquiry, did the accused abuse his office
in order to commit the crime?
He must have abused his public office or at least the

same facilitated the commission of the offense. This
circumstance does not apply, however, where the offenders
act of taking advantage of his public position is an integral
element of, hence inherent in, the offense committed such
as malversation.
Art. 14 par. 1
When a public officer commits a common crime

independent of his official functions and does acts
that are not connected with the duties of his office,
he should be punished as a private individual
without this AC.
Even if defendant did not abuse his office, if it is
proven that he has failed in his duties as such
public officer, this circumstance would warrant
the aggravation of his penalty.
Art. 14 par. 2
Par. 2. - THAT THE CRIME BE COMMITTED IN

CONTEMPT OR WITH INSULT TO THE PUBLIC
AUTHORITIES.
Requisites:
a. That the public authority is engaged in the exercise of his
functions;
b. That he who is thus engaged in the exercise of his
functions is not the person against whom the crime is
committed;
c. The offender knows him to be a public authority; and
d. His presence has not prevented the offender from
committing the criminal act.
Art. 14 par. 2
PUBLIC AUTHORITY / PERSON IN AUTHORITY

A person in authority is one who is directly vested with
jurisdiction, that is, a public officer who has the power to
govern and execute the laws. The councilor, mayor,
governor, barangay captain etc. are persons in authority. A
school teacher, town municipal health officer, agent of the
BIR, chief of police, etc. are now considered a person in
authority.
This aggravating circumstance is not applicable if

committed in the presence of an agent only such as a police
officer.
Art. 14 par. 2
AGENT
A subordinate public officer charged with the

maintenance of public order and the protection and
security of life and property, such as barrio policemen,
councilmen, and any person who comes to the aid of
persons in authority.
N.B. It is essential that the accused must have knowledge

that the person attacked was a person in authority or his
agent in the exercise of his duties, because the accused
must have the intention to offend, injure, or assault the
offended party as a person in authority or agent of a
person in authority (People v. Rodil, 1981).
Art. 14 par. 3
Par. 3. - THAT THE ACT BE COMMITTED (1)
WITH INSULT OR IN DISREGARD OF THE
RESPECT DUE THE OFFENDED PARTY ON
ACCOUNT OF HIS (a) RANK, (b) AGE, OR (c)
SEX, OR (2) THAT IS BE COMMITTED IN THE
DWELLING OF THE OFFENDED PARTY, IF THE
LATTER HAS NOT GIVEN PROVOCATION.
Art. 14 par. 3
Four (4) circumstances are enumerated in this
paragraph, which can be considered single or together. If
all the four (4) circumstances are present, they have the
weight of one aggravating circumstance only. This
circumstance (rank, age or sex) may be taken into account
only in crimes against person or honor.
There must be evidence that in the commission of
the crime, the accused deliberately intended to offend or
insult the sex or age of the offended party.
Disregard of rank, age or sex is essentially
applicable only to crimes against persons or honor. They
are not taken into account in crimes against property.
Art. 14 par. 3
(1) With insult or in disregard of the repect due the

offended party on account:
a. of the rank of the offended party
ex. An attempt upon the life of a general of the

Philippine Army is committed in disregard of his rank.
Art. 14 par. 3
b. of the age of the offended party
ex. When the aggressor is 45 years old and the victim

was an octogenarian.
It is not proper to consider disregard of old age in

crimes against property. Robbery with homicide is
primarily a crime against property.
Art. 14 par. 3
c. of the sex of the offended party
Disregard of sex which, for obvious reasons refers

to the female gender, requires that the accused must
have deliberately intended to insult or to show manifest
disrespect for the sex of the offended party. (People v.
Inggo, 2003)
Killing a woman is not attended by the aggravating

circumstance of disregard of sex if the offender did not
manifest any specific insult or disrespect towards the
offended partys sex. (People v. Taboga, 2002)
Art. 14 par. 3
(2) that be committed in the dwelling of the offended
party
Dwelling refers to a building or structure, exclusively used

for rest and comfort. (People v. Joya, 1993)
This is considered an AC primarily because of the

sanctity of privacy, the law accords to human abode. Also,
in certain cases, there is an abuse of confidence which the
offended party reposed in the offender by opening the
door to him.
Art. 14 par. 3
The evidence must show clearly that the

defendant entered the house of the deceased to
attack him.
The offended party must not give provocation. If

the provocation did not take place in the house,
dwelling may be considered as an AC.
Dwelling includes dependencies, the foot of the

staircase and the enclosure under the house.
Art. 14 par. 4
Par. 4. - THAT THE ACT BE COMMITTED WITH (1)

ABUSE OF CONFIDENCE, OR (2) OBVIOUS
UNGRATEFULNESS.
1. Abuse of confidence
Requisites:
a. That the offended party had trusted the offender.
b. That the offender abused such trust by committing a
crime against the offended party.
c. That the abuse of confidence facilitated the
Art. 14 par. 4
It is essential to show that the confidence between

the parties must be immediate and personal such
as would give the accused some advantage or
make it easier for him to commit the criminal act.
The confidence must be a means of facilitating the
commission of the crime, the culprit taking
advantage of the offended partys belief that the
former would not abuse said confidence. (People
v. Arrojado, 2001)
It is inherent in malversation, qualified theft,

estafa by conversion or misappropriation and
qualified seduction.
Art. 14 par. 4
2. Obvious ungratefulness
The ungratefulness must be obviousmanifest

and clear.
Art. 14 par. 5

THE PALACE OF THE CHIEF EXECUTIVE OR IN
HIS PRESENCE, OR WHERE PUBLIC
AUTHORITIES ARE ENGAGED IN THE
DISCHARGE OF THEIR DUTIES, OR IN A PLACE
DEDICATED TO RELIGIOUS WORSHIP.
If it is the Malacaang palace or a church, it is

aggravating, regardless of whether State or official
or religious functions are being held.
Art. 14 par. 5
The President need not be in the Malacaang palace.

His presence alone in any place where the crime is
committed is enough to constitute the AC. It also
applies even if he is not engaged in the discharge of his
duties in the place where the crime was committed.
Offender must have the intention to commit a crime

when he entered the place.
Only in the third circumstancewhere public

authorities are engaged in the discharge of their
dutiesis performance of function necessary. The other
three circumstances require merely that the crime be
committed in the places specified.
Art. 14 par. 6
Par. 6. - THAT THE CRIME BE COMMITTED (1) IN
THE NIGHT TIME, OR (2) IN AN UNINHABITED
PLACE, OR (3) BY A BAND, WHENEVER SUCH
CIRCUMSTANCES MAY FACILITATE THE
COMMISSION OF THE OFFENSE.
WHENEVER MORE THAN THREE ARMED

MALEFACTORS SHALL HAVE ACTED TOGETHER
IN THE COMMISSION OF AN OFFENSE, IT SHALL
BE DEEMED TO HAVE BEEN COMMITTED BY A
BAND.
Art. 14 par. 6
The circumstances of nighttime,

uninhabited place, and committed by a band
may be considered separately when their
elements are distinctly perceived and can subsist
independently, revealing a greater degree of
perversity. (See People v. Cunanan, 110 Phil. 313)
Art. 14 par. 6
Nighttime, uninhabited place or band is aggravating:
a. When it facilitated the commission of the

crime; or
b. When especially sought for by the offender to
insure the commission of the crime or for the
purpose of impunity; or
c. When the offender took advantage thereof for
the purpose of impunity.
Art. 14 par. 6
1. Nighttime
The commission of the crime must begin and be
accomplished in the nighttime.
The offense must be actually committed in the darkness of
the night. When the place is illuminated by light, nighttime
is not aggravating.
N.B. There are two tests for nocturnity as an aggravating

circumstance: the objective test, under which nocturnity is
aggravating because it facilitates the commission of the
offense; and the subjective test, under which nocturnity is
aggravating because it was purposely sought by the offender.
These two tests should be applied in the alternative. (People v.
Garcia, 31 October 1979)
Art. 14 par. 6
2. Uninhabited place
TEST: Whether or not in the place of the

commission of the offense, there was a
reasonable possibility of the victim receiving or
securing aid from third persons. (People v.
Desalisa, 4 January 1994)
Art. 14 par. 6
3. Crime was committed by a band
Whenever more than 3 armed malefactors shall

have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.
The requisite four (4) armed persons

contemplated in this circumstances must all be
principals by direct participation who acted together in
the execution of the acts constituting the crime (Gamara
v. Valero, 25 June 1973).
Art. 14 par. 7
Par. 7. - THAT THE CRIME BE COMMITTED ON THE

OCCASION OF A CONFLAGRATION, SHIPWRECK,
EARTHQUAKE, EPIDEMIC OR OTHER CALAMITY
OR MISFORTUNE.
The reason for the existence of this AC is found in

the debased form of criminality met in one who, in the
midst of a great calamity, instead of lending aid to the
afflicted, adds to their suffering by taking advantage of
their misfortune to despoil them. The offender must
take advantage of the calamity or misfortune.
Art. 14 par. 7
Or other calamity or misfortune

refers to other conditions of distress similar to
conflagration, shipwreck, earthquake or
epidemic.
Art. 14 par. 8
Par. 8. - THAT THE CRIME BE COMMITTED WITH THE
AID OF ARMED MEN OR PERSONS WHO INSURE OR
AFFORD IMPUNITY.
Requisites:
a. That the armed men or persons took part in the
commission of the crime, directly or indirectly.
b. That the accused availed himself of their aid or relied
upon them when the crime was committed.
N.B. In "aid of armed men," the men must act as

accomplices only. They must not be acting in the
commission of the crime under the same purpose as the
principal accused, otherwise they are to be regarded as co-
principals or co-conspirators. (People v. Enojas, 2014)
Art. 14 par. 9
Par. 8. - THAT THE ACCUSED IS A RECIDIVIST.
A recidivist is one who, at the time of his trial for one

crime, shall have been previously convicted by final
judgment of another crime embraced in the same title
of the RPC.
Requisites:
a. That the offender is on trial for an offense;
b. That he was previously convicted by final judgment
of another crime;
c. That both the first and the second offenses are
embraced in the same title of the Code;
d. That the offender is convicted of the new offense.
Art. 14 par. 9
In recidivism, provided the accused was convicted by
final judgment, the number of intervening years
between that conviction and his subsequent
convictions is immaterial.
Even if the accused was granted pardon for the first
offense, but he commits another felony embraced in
the same title of the Code, the first conviction is still
counted to make him a recidivist since pardon does
not obliterate the fact of his prior conviction.
If the aggravating circumstance of recidivism is
alleged and proved against an accused, who upon
said conviction is also a habitual delinquent, the
imposable penalty must consider both the
circumstances of recidivism and habitual delinquency.
Art. 14 par. 9
People v. Bernal (1936)
Issue: Whether or not in instances where the accused turns out to be an
habitual delinquent the aggravating circumstance of recidivism, when
alleged and proved, should be taken into account in fixing the penalty
applicable for the commission of the principal offense, independently of
the additional penalty provided by law for habitual delinquency.
Held: Yes, since recidivism as an aggravating circumstance modifying

criminal liability is not an inherent or integral element of habitual
delinquency which the Revised Penal Code considers as an extraordinary
and special aggravating circumstance. For recidivism to exist, it is
sufficient that the accused, on the date of his trial, shall have been
previously convicted by final judgment of another crime embraced in the
same title. For the existence of habitual delinquency, it is not enough that
the accused shall have been convicted of any of the crimes specified, and
that the last conviction shall have taken place ten (10) years before the
commission of the last offense. It is necessary that the crimes previously
committed be prior to the commission of the offense with which the
accused is charged a third time or oftener.
Art. 14 par. 10
Par. 10. - THAT THE OFFENDER HAS BEEN

PREVIOUSLY PUNISHED BY AN OFFENSE TO
WHICH THE LAW ATTACHES AN EQUAL OR
GREATER PENALTY OR FOR TWO OR MORE
CRIMES TO WHICH IT ATTACHES A LIGHTER
PENALTY. (otherwise known as habituality or
reiteracion)
Art. 14 par. 10
Requisites for reiteracion:

a. That the accused is on trial for an offense;
b. That he previously served sentence for another
offense to which the law attaches an equal or
greater penalty, or for 2 or more crimes to which
it attaches lighter penalty than that for the new
offense; and
c. That he is convicted of the new offense.
Art. 14 par. 10
This differs from recidivism because reiteracion

requires that the offender be punished for the
previous offenses of which he was convicted and
the penalties imposed for the previous offenses
are determinative, i.e. an offense to which the law
attaches an equal or greater penalty or two or
more offenses to which it attaches lighter
penalties.
Art. 14 par. 9
Quasi-recidivism a special aggravating circumstance defined and
penalized under Art. 160, RPC which provides:
Commission of another crime during service of penalty imposed for

another offense; Penalty. Besides the provisions of Rule 5 of Article
62, any person who shall commit a felony after having been convicted
by final judgment, before beginning to serve such sentence, or while
serving the same, shall be punished by the maximum period of the
penalty prescribed by law for the new felony.
Any convict of the class referred to in this article, who is not a

habitual criminal, shall be pardoned at the age of seventy years if he
shall have already served out his original sentence, or when he shall
complete it after reaching the said age, unless by reason of his
conduct or other circumstances he shall not be worthy of such
clemency.
Art. 14 par. 11

CONSIDERATION OF A PRICE, REWARD, OR
PROMISE.
When this AC is present, there must be two (2)

or more principals, the one who gives or offers the
price or promise and the one who accepts it, both of
whom are principalsto the former, because he
directly induces the latter to commit the crime, and
the latter because he commits it. When this AC is
present, it affects not only the person who received
the price or reward, but also the person who gave it.
Art. 14 par. 12
Par. 12. - THAT THE CRIME BE COMMITTED BY MEANS
OF INUNDATION, FIRE, POISON, EXPLOSION,
STRANDING OF A VESSEL OR INTENTIONAL
DAMAGE THERETO, DERAILMENT OF A
LOCOMOTIVE, OR BY THE USE OF ANY OTHER
ARTIFICE INVOLVING GREAT WASTE AND RUIN.
Unless used by the offender as a means to
accomplish a criminal purpose, any of the circumstances in
paragraph 12 cannot be considered to increase the penalty
or to change the nature of the offense. When another AC
already qualifies the crime, any of these ACs shall be
considered as generic aggravating circumstance only.
Art. 14 par. 13
Par. 13. - THAT THE ACT BE COMMITTED WITH
EVIDENT PREMEDITATION.
Evident premeditation implies a deliberate

planning of the act before executing it. The essence
of premeditation is that the execution of the criminal
act must be preceded by cool thought and reflection
upon the resolution to carry out the criminal intent
during the space of time sufficient to arrive at a calm
judgment.
Art. 14 par. 13
Requisites:
a. The time when the offender determined to commit

the crime;
b. An act manifestly indicating that the culprit has
clung to his determination; and
c. When the crime was carefully planned by the
offenders; and
d. When the offenders previously prepared the
means which they considered adequate to carry it
out.
Art. 14 par. 13
Rules regarding appreciation of evident premeditation:
a. Evident premeditation can be appreciated if the
persons killed were not intended or predetermined,
provided that the intent was generic as where the
accused agreed to kill anyone he meets;
b. It cannot be considered if the supposed victim was
neither specific nor generic, as where the accused had
merely stated several days before the crime that he
intended to kill a person.
c. The circumstance cannot be considered if the specific
victim is intended but a different victim is killed
because of a miscarriage of the blow as in aberratio ictus.
(Regalado, Criminal Law Conspectus (2003), p. 96)
Art. 14 par. 13
A sufficient lapse of time between the
determination and execution, to allow him to
reflect upon the consequences of his act and to
allow his conscience to overcome the resolution
of his will.
The offender must have an opportunity to coolly
and serenely think and deliberate on the
meaning and the consequences of what he
planned to do, an interval long enough for his
conscience and better judgment to overcome his
evil desire and scheme.
Art. 14 par. 14
Par. 14. - THAT CRAFT, FRAUD OR DISGUISE BE

EMPLOYED.
Craft involves intellectual trickery and cunning on

the part of the accused. It is employed as a scheme in
the execution of the crime.
Fraud insidious words or machinations used to

induce the victim to act in a manner which would
enable the offender to carry out his design.
Art. 14 par. 14
Craft v. Fraud
When there is a DIRECT INDUCEMENT by
insidious words or machinations, fraud is present;
otherwise, the act of the accused done in order
NOT TO AROUSE THE SUSPICION of the victim
constitutes craft.
Disguise resorting to any device to conceal identity.

The test of disguise is whether the device or
contrivance resorted to by the offender was intended
to or did make identification more difficult, such as
the use of a mask or false hair or beard.
Art. 14 par. 15
Par. 15. - THAT (1) ADVANTAGE BE TAKEN OF
SUPERIOR STRENGTH, OR (2) MEANS BE
EMPLOYED TO WEAKEN THE DEFENSE.
1. Abuse of superior strength

To TAKE ADVANTAGE of superior strength
means to use purposely excessive force out of
proportion to the means of defense available to the
person attacked.
Art. 14 par. 15
(2) Means employed to weaken defense
This circumstance is applicable only to crimes

against persons and sometimes against person and
property, such as robbery with physical injuries or
homicide.
This AC is absorbed in treachery.

Art. 14 par. 16
Par. 16. - THAT THE AXT BE COMMITTED

WITH TREACHERY (ALEVOSIA).
There is treachery when the offender commits

any of the crimes against person, employing
means methods or forms in the execution
thereof which tend directly and specially to
insure its execution, without risk to himself
arising from the defense which the offended
party might take.
Art. 14 par. 16
Rules regarding treachery:
Treachery is applicable only to crimes against

persons. However, in several cases of robbery with
homicide, treachery was appreciated as a generic
aggravating circumstance (People v. Escote, 2003).
The means, methods or forms used by the

perpetrator need not insure accomplishment of
crime.
The mode of attack must be consciously adopted.

Art. 14 par. 16
Attacks which show intention to eliminate risk:
Victim asleep (People v. Oanis, 1943)
Victim half-awake or just awakened
Victim grappling or being held.
Victim was a child of tender age (U.S. v. Antonio, 1915)
Attacked from behind - As a rule, a sudden attack by the
assailant, whether frontally or from behind, is treachery if
such mode of attack was coolly and deliberately adopted by
him, with the purpose of depriving the victim of a chance
to either fight or retreat. The rule does not apply, however,
where the sudden attack was not preconceived and
deliberately adopted but was just triggered by the sudden
infuriation on the part of the accused because of the
provocative act of the victim, or where their meeting was
purely accidental (People v. Monte, 2002).
Art. 14 par. 16
Additional rules:
a. When the aggression is CONTINUOUS, treachery

must be present in the BEGINNING of the assault
(U.S. v. Balagtas).
b. When the assault WAS NOT CONTINUOUS, in that

there was an interruption, it is sufficient that
treachery was present AT THE MOMENT THE
FATAL BLOW WAS GIVEN (U.S. v. Baluyot).
Art. 14 par. 17
Par. 17. - THAT MEANS BE EMPLOYED OR
CIRCUMSTANCES BROUGHT ABOUT WHICH ADD
IGNOMINY TO THE NATURAL EFFECTS OF THE ACT.
Ignominy is a circumstance pertaining to the moral order,

which adds disgrace and obloquy to the material injury
caused by the crime.
The means employed or the circumstances brought

about must tend to make the effects of the crime MORE
HUMILIATING or TO PUT THE OFFENDED PARTY TO
SHAME. It is not solely applicable to crimes against
chastity i.e. when the victim was made to kneel before his
servants before he was shot by the accused.
Art. 14 par. 18
Par. 18. - THAT THE CRIME BE COMMITTED AFTER AN
UNLAWFUL ENTRY.
There is unlawful entry when an entrance is
effected by a way not intended for the purpose.
Unlawful entry must be a means to effect entrance and

not for escape.
In People v. Galapia (1978), it was ruled that there was
unlawful entry because of the destruction of the glass
blades or jalousies of a window in order to gain
entrance to the house.
There is no unlawful entry when the door is broken and
thereafter the accused made an entry thru the broken
door. The breaking of the door is covered by paragraph
19.
Art. 14 par. 19
Par. 19 THAT AS A MEANS TO THE COMMISSION

OF A CRIME A WALL, ROOF, FLOOR, DOOR, OR
WINDOW BE BROKEN.
To be considered as an AC, breaking the door must

be utilized as a means to the commission of the
crime.
It is only aggravating in cases where the offender

resorted to any of said means TO ENTER the house.
If the wall, etc. is broken in order to get out of the
place, it is not aggravating.
Art. 14 par. 20
Par. 20. - THAT THE CRIME BE COMMITTED (1)

WITH THE AID OF PERSONS UNDER FIFTEEN
YEARS OF AGE OR (2) BY MEANS OF MOTOR
VEHICLES, MOTORIZED WATERCRAFT,
AIRSHIPS, OR OTHER SIMILAR MEANS. (AS
AMENDED BY R.A. No. 5438).
Art. 14 par. 20
1. With the aid of persons under 15 years of age; or
2. By means of a motor vehicle

It is aggravating where the accused used the motor
vehicle in going to the place of the crime, in carrying
away the effects thereof, and if facilitating their escape.
The availment by the accused of the motor vehicle
must have been for the purpose of ensuring the success
of their criminal enterprise.
or other similar means the expression should be

understood as referring to MOTORIZED vehicles or other
efficient means of transportation similar to automobile or
airplane.
Art. 14 par. 21
Par. 21. - THAT THE WRONG DONE IN THE
COMMISSION OF THE CRIME BE DELIBERATELY
AUGMENTED BY CAUSING OTHER WRONG NOT
NECESSARY FOR ITS COMMISSIONS.
Cruelty
For cruelty to exist, it must be shown that the
accused enjoyed and delighted in making his
victim suffer.
The contemplation of the law requires deliberate
prolongation of the victims suffering.
Victim was alive while the sadistic acts were being
committed against him by the accused.
Art. 14 par. 21
Requisites:
1. That the injury caused be deliberately increased by causing

other wrong;
2. That the other wrong be unnecessary for the execution of

the purpose of the offender.
The number of wounds on the corpse of the victim does not

per se mean that there was cruelty in the commission of the
crime. There must be a showing that the wounds were
inflicted while the victim was alive and such intervals as to
reveal that the number of wounds and manner of inflicting
them were intentionally designed to augment and prolong his
physical sufferings. (People v. Ang, 1985)
JURISPRUDENCE
People v. Antonio (2002)
Every Complaint or Information must state not only the

qualifying but also the aggravating circumstances. This rule
may be given retroactive effect in the light of the well-
established rule that statutes regulating the procedure of
the courts will be construed as applicable to actions
pending and undetermined at the time of their passage.
People v. Mendoza (2000)
Treachery in the present case is a qualifying, not a generic

aggravating circumstance. Its presence served to
characterize the killing as murder; it cannot at the same
time be considered as a generic aggravating circumstance
to warrant the imposition of the maximum penalty. Thus, it
cannot be offset by voluntary surrender.
JURISPRUDENCE
People v. Villamor (2002)
The fact that accused-appellant is a policeman and used his

government issued .38 caliber revolver to kill is not
sufficient to establish that he misused his public position in
the commission of the crime.
People v. Taboga (2002)
Anent the circumstance of age, there must be a showing

that the malefactor deliberately intended to offend or insult
the age of the victim. Neither could disregard of respect due
to sex be appreciated if the offender did not manifest any
intention to offend or disregard the sex of the victim.
JURISPRUDENCE
People v. Villaflores (2012)
Art. 266-B of the Revised Penal Code states that the

death penalty shall be imposed if the victim of the
crime of rape is below seven (7) years old. This article
declared tender age of the victim as an aggravating
circumstance in rape.
JURISPRUDENCE
Under Section 8, R.A. No. 9165, the presence of any controlled
precursor and essential chemical or laboratory equipment in the
clandestine laboratory shall be considered an aggravating
circumstance if the clandestine laboratory is undertaken or
established under the following circumstances:
i. Any phase of the manufacturing process was conducted in
the presence or with the help of minor/s;
ii. Any phase or manufacturing process was established or
undertaken within one hundred (100) meters of a residential,
business, church or school premises;
iii. Any clandestine laboratory was secured or protected with
booby traps;
iv. Any clandestine laboratory was concealed with legitimate
business operations; or
v. Any employment of a practitioner, chemical engineer, public
official or foreigner.
JURISPRUDENCE
Section 25 of R.A. No. 9165 provides for a qualifying
aggravating circumstance, to wit:
Qualifying Aggravating Circumstances in the Commission of

a Crime by an Offender under the Influence of Dangerous
Drugs. - Notwithstanding the provisions of any law to the
contrary, a positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in the
commission of a crime by an offender, and the application
of the penalty provided for in the Revised Penal Code shall
be applicable.
JURISPRUDENCE
People v. Tano (2000)
Dwelling cannot be appreciated as an aggravating

circumstance in this case because the rape was committed
in the ground floor of a two-story structure, the lower floor
being used as a video rental store and not as a private
place of abode or residence.
People v. Silva (2000)
By and of itself, nighttime is not an aggravating

circumstance, however, it becomes aggravating only when:
(1) it is especially sought by the offender; or (2) it is taken
advantage of by him; or (3) it facilitates the commission of
the crime by ensuring the offender's immunity from
capture.
JURISPRUDENCE
People v. Cajara (2000)
Reiteracion or habituality is present when the accused has

been previously punished for an offense to which the law
attaches an equal or greater penalty than that attached by
law to the second offense or for two or more offenses to
which it attaches a lighter penalty.
JURISPRUDENCE
People v. Mondijar (2002)
For the circumstance of evident premeditation to be

appreciated, the prosecution must present clear and positive
evidence of the planning and preparation undertaken by the
offender prior to the commission of the crime.
People v. Rendaje (2000)
To constitute treachery, two conditions must concur: (1) the

employment of means, methods or manner of execution that
would ensure the offender's safety from any defense or
retaliatory act on the part of the offended party; and (2) the
offender's deliberate or conscious choice of the means,
method or manner of execution.
JURISPRUDENCE
People v. Caratao (2003)
Chance encounters, impulse killing or crimes committed at

the spur of the moment, or those that were preceded by
heated altercations are generally not attended by treachery,
for lack of opportunity of the accused deliberately to
employ a treacherous mode of attack.
People v. Labiaga (2013)
A treacherous attack is one in which the victim was not

afforded any opportunity to defend himself or resist the attack.
The existence of treachery is not solely determined by the
type of weapon used. If it appears that the weapon was
deliberately chosen to insure the execution of the crime,
and to render the victim defenseless, then treachery may be
properly appreciated against the accused
JURISPRUDENCE
People v. Laog (5 October 2011)
The aggravating circumstance of abuse of superior strength

is considered whenever there is a notorious inequality of
forces between the victim and the aggressor that is plainly
and obviously advantageous to the aggressor and
purposely selected or taken advantage of to facilitate the
commission of the crime. This notorious inequality does
not always presuppose difference in physical attributes. It
is taken into account whenever the aggressor purposely
used excessive force that is out of proportion to the means
of defense available to the person attacked. In this case, as
personally witnessed by AAA, Laog struck Rosal in the
head with a lead pipe then stabbed her repeatedly until she
was dead.
JURISPRUDENCE
People v. Sansaet (2002)
Mere superiority in number, even assuming it to be a fact,

would not necessarily indicate the attendance of abuse of
superior strength. The prosecution should still prove that
the assailants purposely used excessive force out of
proportion to the means of defense available to the persons
attacked
People v. Catian (2002)
For cruelty to exist, there must be proof showing that the

accused delighted in making their victim suffer slowly and
gradually, causing him unnecessary physical and moral
pain in the consummation of the criminal act.
JURISPRUDENCE
People v. Enojas (2014)
In "aid of armed men," the men act as accomplices only.

They must not be acting in the commission of the crime
under the same purpose as the principal accused,
otherwise they are to be regarded as co-principals or co-
conspirators. The use of unlicensed firearm, on the other
hand, is a special aggravating circumstance that is not
among the circumstances mentioned in Article 248 of the
Revised Penal Code as qualifying a homicide to
murder. Consequently, the accused in this case may be held
liable only for homicide, aggravated by the use of
unlicensed firearms, a circumstance alleged in the
information.
JURISPRUDENCE
People v. Biglete (2012)
A motorcycle was used to facilitate the commission of

the crime as well as his escape after the deed had been
accomplished. Thus, the aggravating circumstance of
use of a motor vehicle was properly appreciated by
the trial court. The accused was on board the
motorcycle when he tried to overtake the jeepney
being driven by the victim. When he was already near
the left side of the victim, the accused shot him at
close range. Immediately after, he fled from the crime
scene using his motorcycle.
Special Laws
Old Firearms Law
P.D. No. 1866, as amended by R.A. No. 8294:
If homicide or murder is committed with the use of an unlicensed

firearm, such use of an unlicensed firearm shall be considered as an
aggravating circumstance (Sec. 1).
New Firearms Law R.A. No. 10591, otherwise known as the

Comprehensive Firearms and Ammunition Regulation Act:
If the use of a loose firearm is inherent in the commission of a crime
punishable under the RPC or other special laws the use of loose
firearm is an aggravating circumstance. Hence, the penalty for the
use of a loose firearm is not imposed (Sec. 29).
However, if the crime is committed by the person without using the
loose firearm, the violation of this law shall be considered as a
distinct and separate offense (Sec. 29).
Special Laws
Under the Republic Act No.9165 otherwise known as the

Comprehensive Dangerous Drugs Act of 2002:
Notwithstanding the provisions of any law to the

contrary, a positive finding for the use of dangerous drugs
shall be a qualifying aggravating circumstance in the
commission of a crime by an offender, and the application
of the penalty provided for in the Revised Penal Code shall
be applicable (Sec. 25).
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Rico, a member of the Alpha Rho fraternity, was

killed by Pocholo, a member of the rival group, Sigma
Phi Omega. Pocholo was prosecuted for homicide
before the Regional Trial Court in Binan, Laguna.
During the trial, the prosecution was able to prove
that the killing was committed by means of poison in
consideration of a promise or reward and with
cruelty. If you were the Judge, with what crime will
you convict Pocholo? Explain. (2000 Bar)
A: Pocholo should be convicted of the crime of homicide only

because the aggravating circumstances which should qualify
the crime to murder were not alleged in the Information.
The circumstances of using poison, in consideration of a
promise or reward, and cruelty which attended the killing of
Rico could only be appreciated as generic aggravating circumstances*
since none of them have been alleged in the information to
qualify the killing to murder. A qualifying circumstance must
be alleged in the Information and proven beyond reasonable
doubt during the trial to be appreciated as such.
(N.B. This answer is not correct anymore. Under the Revised
Rules on Criminal Procedure effective 1 December 2000, Section
9, Rule 110 provides that both qualifying and ordinary
aggravating circumstances must be alleged in the information
to be considered in the imposition of penalty.)
Q: Jose, Domingo, Manolo, and Fernando, armed with bolos, at
about one o'clock in the morning, robbed a house at a desolate
place where Danilo, his wife, and three daughters were living.
While the four were in the process of ransacking Danilo's house,
Fernando, noticing that one of Danilo's daughters was trying to get
away, ran after her and finally caught up with her in a thicket
somewhat distant from the house. Fernando, before bringing back
the daughter to the house, raped her first. Thereafter, the four
carted away the belongings of Danilo and his family.
a. What crime did Jose, Domingo, Manolo and Fernando commit?
b. Suppose, after the robbery, the four took turns in raping the
three daughters of Danilo inside the latter's house, but before
they left, they killed the whole family to prevent identification,
what crime did the four commit? Explain.
c. Under the facts of the case, what aggravating circumstances
may be appreciated against the four? Explain. (1996 Bar)
a. Jose, Domingo, and Manolo committed Robbery, while Fernando
committed complex crime of Robbery with Rape.
b. The crime would be Robbery with Homicide because the killings

were by reason (to prevent identification) and on the occasion of
the robbery. The multiple rapes committed and the fact that
several persons were killed [homicide], would be considered as
aggravating circumstances. The rapes are synonymous with
ignominy and the additional killing synonymous with cruelty
(People vs. Solis, 182 SCRA; People vs. Plaga, 202 SCRA 531). (N.B.
This doctrine no longer applies.)
c. The aggravating circumstances which may be considered in the

premises are: (1) Band because all the four offenders are armed;
(2) Nocturnity because evidently the offenders took advantage of
nighttime; (3) Dwelling; and (4) Uninhabited place because the
house where the crimes were committed was "at a desolate place"
and obviously the offenders took advantage of this circumstance
Arthur, Ben, and Cesar quarreled with Glen while

they were at the latters house. Enraged, Arthur
repeatedly stabbed Glen while Ben and Cesar
pinned his arms. What aggravating circumstance
if any attended the killing of Glen?
(A) Evident premeditation.

(B) None.
(C) Abuse of superior strength.
(D) Treachery. (2011 Bar)
Ana visited her daughter Belen who worked as Caloys

housemaid. Caloy was not at home but Debbie, a casual
visitor in the house, verbally maligned Belen in Anas
presence. Irked, Ana assaulted Debbie. Under the
circumstances, dwelling is NOT regarded as aggravating
because
(A) Dwelling did nothing to provoke Ana into assaulting

Debbie.
(B) Caloy, the owner of the house, was not present.
(C) Debbie is not a dweller of the house.
(D) Belen, whom Debbie maligned, also dwells in the house.
(2011 Bar)
6. MURDER
MURDER : ART. 248
Murder. Any person who, not falling within the provisions
of Article 246 shall kill another, shall be guilty of murder
and shall be punished by reclusin perpetua in its
maximum period to death, if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength,

with the aid of armed men, or employing means to
weaken the defense or of means or persons to insure or
afford impunity.
2. In consideration of a price, reward, or promise.
MURDER : ART. 248
3. By means of inundation, fire, poison, explosion,

shipwreck, stranding of a vessel, derailment or assault
upon a railroad, fall of an airship, by means of motor
vehicles, or with the use of any other means involving
great waste and ruin.
4. On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic or other public
calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting
the suffering of the victim, or outraging or scoffing at his
person or corpse. (As amended by Section 6, Republic Act No.
7659.)
MURDER : ART. 248
Elements:
1. A person was killed;

2. The accused killed him;
3. The killing was attended by any of the following
qualifying circumstances
a. With treachery, taking advantage of
superior strength, with the aid or armed men,
or employing means to weaken the defense, or
of means or persons to insure or afford
impunity;
MURDER : ART. 248
b. In consideration of a price, reward or promise;
c. By means of inundation, fire, poison,

explosion, shipwreck, stranding of a vessel,
derailment or assault upon a railroad, fall of an
airship, by means of motor vehicles, or with the
use of any other means involving great waste
and ruin;
d. On occasion of any of the calamities

enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive
cyclone, epidemic, or any other public calamity
MURDER : ART. 248
e. With evident premeditation

f. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse
MURDER : ART. 248
The killing should be under the circumstances which
would have resulted in homicide, not parricide or
infanticide, in the absence of the qualifying
circumstances.
Thus, murder is the unlawful killing of any person

which is not parricide or infanticide, provided any of
the qualifying circumstances are present.
Murder will exist even with only one of the

circumstances enumerated in this article.
When more than one of the qualifying circumstances

is present, the others must be considered as generic
aggravating.
MURDER : ART. 248
However, when the other circumstances are
absorbed or included in one qualifying
circumstance, they cannot be considered as
generic aggravating. (ex: abuse of superior
strength is absorbed by treachery)
The qualifying circumstance must be alleged, in

order to qualify the killing to murder. The rule is
that qualifying circumstances must be properly
pleaded in the Information in order not to violate
the accuseds constitutional right to be properly
informed of the nature and cause of the
accusation against him. (People v. Asilan, 2012)
JURISPRUDENCE
People v. Mallari (2003)
The Court affirmed the trial court's finding that Rufino

deliberately bumped Joseph with the truck he was driving.
The evidence shows that Rufino deliberately used his
truck in pursuing Joseph. Upon catching up with him,
Rufino hit him with the truck, as a result of which
Joseph died instantly. It is therefore clear that the truck
was the means used by Rufino to perpetrate the killing
of Joseph.
Under Article 248 of the Revised Penal Code, a person

who kills another "by means of a motor vehicle" is
guilty of murder. Thus, the use of motor vehicle
qualifies the killing to murder.
JURISPRUDENCE
People v. Whisenhunt (2002)
The mere decapitation of the victim's head

constitute outraging or scoffing at the corpse of the
victim, thus qualifying the killing to murder. In
this case, accused-appellant not only beheaded
Elsa. He further cut up her body like pieces of
meat. Then, he strewed dismembered parts of her
body in a deserted road in the countryside, leaving
them to rot on the ground.
JURISPRUDENCE
People v. Pugay (1988)
Pugay poured gasoline on a 25-year old mental retardate

while Samson set the poor guy on fire, killing him in the
process. They were both convicted of murder.
HELD: Pugay can only be convicted of Homicide thru

reckless imprudence because of his failure to exercise all the
diligence necessary to avoid every undesirable consequence
arising from any act committed by his companions. Samson
is guilty of Homicide although it was not his intention to kill
the guy, but he shall be credited with the mitigating
circumstance of no intention to commit so grave a wrong.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Mang Jose, a septuagenarian, was walking with his ten-

year old grandson along Paseo de Roxas and decided to
cross at the intersection of Makati Avenue but both were hit
by a speeding CRV Honda van and were sent sprawling on
the pavement a meter apart. The driver, a Chinese mestizo,
stopped his car after hitting the two victims but then
reversed his gears and ran over Mang Jose's prostrate body
anew and third time by advancing his car forward. The
grandson suffered broken legs only and survived but Mang
Jose suffered multiple fractures and broken ribs, causing his
instant death. The driver was arrested and charged with
Murder for the death of Mang Jose and Serious Physical
Injuries through Reckless Imprudence with respect to the
grandson. Are the charges correct? Explain. (2001 Bar)
A: Yes, the charges are correct. For deliberately running over Mang
Jose's prostrate body after having bumped him and his grandson,
the driver indeed committed Murder, qualified by treachery. Said
driver's deliberate intent to kill Mang Jose was demonstrated by
his running over the latter's body twice, by backing up the van and
driving it forward, whereas the victim was helpless and not in a
position to defend himself or to retaliate.
As to the serious physical injuries sustained by Mang Jose's
10-year old grandson, as a result of having been hit by the
speeding vehicle of said driver, the same were the result of
reckless imprudence which is punishable as a quasi-offense in
Article 365 of the Revised Penal Code. The charge of Reckless
Imprudence Resulting to Serious Physical Injuries is correct. The
penalty next higher in degree to what ordinarily should be
imposed is called for, since the driver did not lend help on the
spot, which help he could have given to the victims.
Q: Dagami concealed Bugnas body and the fact that he

killed him by setting Bugnas house on fire. What crime or
crimes did Dagami commit?
(A) Murder, the arson being absorbed already

(B) Separate crimes of murder and arson
(C) Arson, the homicide being absorbed already
(D) Arson with murder as a compound crime. (2011 Bar)
Q: On hearing a hospital ward patient on the next bed,

shrieking in pain and begging to die, Mona shut off
the oxygen that was sustaining the patient, resulting
in his death. What crime if any did Mona commit?
(A) Homicide.
(B) Murder if she deliberated on her action.
(C) Giving Assistance to Suicide.
(D) Euthanasia. (2011 Bar)
7. THEFT
THEFT : ART. 308
Who are liable for theft. Theft is committed by any

person who, with intent to gain but without violence
against or intimidation of persons nor force upon things,
shall take personal property of another without the
latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail

to deliver the same to the local authorities or to its owner;
THEFT : ART. 308
2. Any person who, after having maliciously damaged

the property of another, shall remove or make use of the
fruits or object of the damage caused by him; and
3. Any person who shall enter an enclosed estate or a

field where trespass is forbidden or which belongs to
another and without the consent of its owner, shall hunt
or fish upon the same or shall gather fruits, cereals, or
other forest or farm products.
TAKING
Considered complete from the moment offender had

full possession of the thing even if he did not have an
opportunity to dispose of the same.
Animo lucrandi or intent to gain is presumed from the
unlawful taking of personal property belonging to
another.
It is theft even if the accused did not did not take the
personal property for his own use.
If there is delivery of property to the accused in trust,
there is transfer of juridical possession; hence, no theft,
but possibly estafa.
PENALTY FOR THEFT : ART. 309
Penalties. Any person guilty of theft shall be punished

by:
1. The penalty of prisin mayor in its minimum and

medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if
the value of the thing stolen exceeds the latter amount the
penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty
which may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory penalties
which may be imposed and
for the purpose of the other provisions of this Code, the

penalty shall be termed prisin mayor or reclusin
temporal, as the case may be.
2. The penalty of prisin correccional in its medium and

maximum periods, if the value of the thing stolen is
more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prisin correccional in its minimum

and medium periods, if the value of the property stolen
is more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prisin

correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed
200 pesos.
5. Arresto mayor to its full extent, if such value is over

5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods,

if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the
theft is committed under the circumstances enumerated
in paragraph 3 of the next preceding article and the value
of the thing stolen does not exceed 5 pesos. If such value
exceeds said amount, the provisions of any of the five
preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not

exceeding 50 pesos, when the value of the thing stolen is
not over 5 pesos, and the offender shall have acted under
the impulse of hunger, poverty, or the difficulty of
earning a livelihood for the support of himself or his
family.
JURISPRUDENCE
People v. Dela Cruz (2000)
Possession of the stolen goods creates a disputable

presumption that the possessor stole the same.
Valenzuela v. People (2007)
There is no such thing as frustrated theft. Once there is

unlawful taking, theft is deemed consummated.
Disposition of the stolen goods is not an element of theft.

JURISPRUDENCE
People v. Gidwani (2014)
Illegal toll bypass operations constitute theft. In

Laurel v. Abrogar, the Supreme Court held that the
use of PLDTs communications facilities without its
consent constitutes theft of its telephone services
and business. The business of providing
telecommunication and the telephone service are
personal property under Article 308 of the Revised
Penal Code.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Mario found a watch in a jeep he was riding, and since it

did not belong to him, he approached policeman P and
delivered the watch with instruction to return the same to
whoever may be found to be the owner.
P failed to return the watch to the owner and, instead, sold it

and appropriated for himself the proceeds of the sale.
Charged with theft, P reasoned out that he cannot be found

guilty because it was not he who found the watch and,
moreover, the watch turned out to be stolen property. Is P's
defense valid? (1998 Bar)
A: No, P's defense is not valid. In a charge for theft, it

is enough that the personal property subject thereof
belongs to another and not to the offender (P). It is
irrelevant whether the person deprived of the
possession of the watch has or has no right to the
watch. Theft is committed by one who, with intent to
gain, appropriates property of another without the
consent of its owner. And the crime is committed even
when the offender receives property of another but
acquires only physical possession to hold the same.
Q: In the jewelry section of a big department store,

Julia snatched a couple of bracelets and put these
in her purse. At the store's exit, however, she was
arrested by the guard after being radioed by the
store personnel who caught the act in the store's
moving camera. Is the crime consummated,
frustrated, or attempted? (1998 Bar)
A: The crime is consummated theft because the

taking of the bracelets was complete after Julia
succeeded in putting them in her purse. Julia
acquired complete control of the bracelets after
putting them in her purse; hence, the taking with
intent to gain is complete and thus the crime is
consummated.
Manolo, an avid art collector, was invited to Tonios house.
There, Manolo noticed a nice painting that exactly looked
like the painting which he reported was stolen from him
some years back. Manolo confronted Tonio about the
painting, but Tonio denied any knowledge, claiming that he
bought the painting legitimately from a friend. Manolo later
proved to Tonio that the painting was indeed the stolen
painting.
A. What crime/s, if any, may Tonio be charged with?
B. Manolo decided to take matters into his own hands and,
one night, broke into Tonios house by destroying the
wall and taking the painting. What, if any, would be the
liability of Manolo? (2014 Bar)
(A) Tonio may be prosecuted for violation of the Anti-

Fencing Law (P.D. 1612). Fencing is committed by any
person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any other manner deal
in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft. Further,
under Section 5 thereof, mere possession of any good, article,
item, etc or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing.
(B) Manolo is liable for robbery through force upon things under
Art. 299 of the RPC, which punishes a malefactor who shall enter
the house or building in which the robbery was committed
through, among others, breaking any wall, roof, or floor or
breaking any door or window. Here, Manolo broke the wall of
Tonios house in order to take the painting.
The following elements of Robbery Through Force Upon Things

are present in this case: (a) there is a personal property which
belongs to another; (b) there is unlawful taking of such personal
property; (c) there is intent to gain; and (d) there is employment
of force upon things. While Manolo later on proved to Tonio that
the painting was indeed the stolen painting, there was no judicial
declaration that Manolo is the owner thereof. Thus, Manolo
remains liable for robbery despite his alleged ownership.
Alternative Answer:
Manolo may be held liable for Malicious Mischief

under Article 327 of the RPC, which punishes any
person who deliberately causes damage to
anothers property. In this case, Manolo
deliberately broke the wall of Tonios house. On
the other hand, Manolo may not be held liable for
the crime of Robbery if he is the acknowledged
owner of the stolen painting, and therefore he did
not have any intent to gain, which is an essential
element of the crime of Robbery.
8. PROXIMATE CAUSE
PROXIMATE CAUSE : ART. 4
Proximate Cause , definition:
the cause, which, in natural and continuous

sequence, unbroken by any efficient
intervening cause, produces the injury, and
without which the result would not have
occurred.
PROXIMATE CAUSE : ART. 4 par. 1
Criminal liability. Criminal liability shall be

incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different
from that which he intended.
Death is presumed to be the natural consequence of

physical injuries inflicted when:
1. The victim at the time the physical injuries were

inflicted was in normal health.
2. That the death may be expected from the physical

injuries inflicted.
3. That death ensued within a reasonable time.

The felony committed is NOT the proximate cause

of the resulting injury when:
a. There is an active force that intervened between

the felony committed and the resulting injury,
and the active force is a distinct act or fact
absolutely foreign from the felonious act of the
accused; or
b. The resulting injury is due to the intentional act

of the victim.
JURISPRUDENCE
Quinto v. Andres (2005)
Proximate cause is characterized by a relationship of

cause and effect, the cause being the felonious act of
the offender and the effect is the resulting injury or
death of the victim.
The felony committed is not the proximate cause of the

injury when:
An active force intervened between the felony
committed and the resulting injury;
The injury resulted from the victims intentional
act.
JURISPRUDENCE
Garcia v. People (2009)
Facts: Accused physically beat and mauled the victim until

he was able to free himself and run away. When the victim
reached his house, he experienced pain and had a hard
time breathing until he eventually expired. The victim was
found to have died of myocardial infarction.
Held: The Court held that the emotional strain from the
beating aggravated victim's delicate constitution and led to
his death. The inevitable conclusion then surfaces that the
myocardial infarction suffered by the victim was the direct,
natural and logical consequence of the felony that
petitioner had intended to commit.
JURISPRUDENCE
Garcia v. People (2009)
Article 4 (1) of the RPC states that criminal liability shall be

incurred "by any person committing a felony (delito) although
the wrongful act done be different from that which he
intended". The essential requisites for the application of this
provision are: (a) the intended act is felonious; (b) the
resulting act is likewise a felony; and (c) the unintended albeit
graver wrong was primarily caused by the actor's wrongful
acts. In this case, petitioner was committing a felony when he
boxed the victim and hit him with a bottle. Hence, the fact that
the victim was previously afflicted with a heart ailment does
not alter petitioner's liability for his death.
JURISPRUDENCE
People v. Villacorta (2011)
Proximate cause has been defined as "that cause, which, in

natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which
the result would not have occurred.
In this case, the Supreme Court ruled that a person who

died from tetanus infection secondary to a stabbed wound
inflicted by accused, died from an intervening cause
separate and distinct from the act of stabbing committed by
accused. Thus, the High Court ruled that accused is not
guilty of murder.
JURISPRUDENCE
People v. Villacorta (2011)
The rule is that the death of the victim must be the direct,
natural, and logical consequence of the wounds inflicted upon
him by the accused. And since we are dealing with a criminal
conviction, the proof that the accused caused the victim's
death must convince a rational mind beyond reasonable
doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an
efficient intervening cause later or between the time the victim
was wounded to the time of his death. The infection was,
therefore, distinct and foreign to the crime.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: During the robbery in a dwelling house, one of the
culprits happened to fire his gun upward in the
ceiling without meaning to kill anyone. The owner
of the house who was hiding thereat was hit and
killed as a result.
The defense theorized that the killing was a mere

accident and was not perpetrated in connection
with, or for purposes of, the robbery. Will you
sustain the defense? Why? (1999 Bar)
A: No, I will not sustain the defense. The act being

felonious and the proximate cause of the victim's
death, the offender is liable therefore although it may
not be intended or different from what he intended.
The offender shall be prosecuted for the composite
crime of robbery with homicide, whether the killing
was intentional or accidental, as long as the killing
was on occasion of the robbery.
Q: Pretty, after being raped by Guapo and Pogi,
decided to take her own life by hanging herself
one hour after the rape. Would Guapo and Pogi be
liable for Prettys death? Explain. (2014 Bar)
A: No. Prettys act of killing herself one hour after

the rape cannot be attributed to Pogi and Guapo.
The rape cannot be considered as the proximate
cause of the death of Pretty, there being an efficient
intervening cause, which is Prettys decision to
commit suicide for experiencing such ordeal.
Besides, suicide is not homicide and is not a crime
under our laws.
9. HOMICIDE
HOMICIDE : ART. 249
Homicide. Any person who, not falling within the

provisions of Article 246, shall kill another without the
attendance of any of the circumstances enumerated in
the next preceding article, shall be deemed guilty of
homicide and be punished by reclusin temporal.
HOMICIDE : ART. 249
Elements:
a. A person was killed;

b. The accused killed him without any justifying
circumstance;
c. The accused had the intention to kill, which is
presumed;
d. The killing was not attended by any of the qualifying
circumstances of murder, or by that of parricide or
infanticide.
HOMICIDE : ART. 249
Intent to kill
- is conclusively presumed when death resulted. (crime is
consummated)
Evidence of intent to kill

- is important only in attempted or frustrated homicide (to
differentiate it from physical injuries). In such cases, intent
to kill must be proved beyond reasonable doubt.
N.B. There is no offense of Frustrated Homicide through

Reckless Imprudence because the element of intent to kill is
incompatible with imprudence or negligence.
HOMICIDE : ART. 249
Corpus delicti
the actual commission of the crime charged,
means that the crime was actually committed.
In crimes against persons in which death of
the victim is an element of the offense, there
must be satisfactory proof of the fact of death,
and the identity of the victim.
JURISPRUDENCE
Rivera v. People (2006)
An essential element of murder and homicide,

whether in their consummated, frustrated or
attempted stage, is intent of the offenders to kill the
victim immediately before or simultaneously with the
infliction of injuries.
Intent to kill is a specific intent which the prosecution

must prove by direct or circumstantial evidence, while
general criminal intent is presumed from the
commission of a felony by dolo.
PENALTY FOR FRUSTRATED AND ATTEMPTED
PARRICIDE, MURDER OR HOMICIDE
The courts, in view of the facts of the case, may
impose upon the person guilty of the frustrated crime
of parricide, murder or homicide, defined and
penalized in the preceding articles, a penalty lower by
one degree than that which should be imposed under
the provision of Article 50 (Art. 250, RPC).
The courts, considering the facts of the case, may

likewise reduce by one degree the penalty which
under Article 51 should be imposed for an attempt to
commit any of such crimes (Art. 250, RPC).
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: X killed B, mistakenly believing that she was his

wife, upon surprising her having sex with another
man in a motel room. What is the criminal liability of
X?
A. None since he killed her under exceptional circumstances.
B. None since he acted under a mistake of fact.
C. Parricide.
D. Homicide. (2011 Bar)
Q: At the height of an altercation, Pedrito shot Paulo

but missed, hitting Tiburcio instead, resulting in the
death of the latter. Pedrito, invoking the doctrine of
aberratio ictus, claims exemption from criminal
liability. If you were the judge, how would you decide
the case? (1996 Bar)
A: If I were the Judge, I will convict Pedrito and find him guilty
of the complex crime of Homicide with Attempted
Homicide. The single act of firing at Paulo resulted in the
commission of two felonies, one grave (homicide) and the
other less grave (attempted homicide) thus falling squarely
under Art. 48, RPC; hence, the penalty would be for the
more serious crime (homicide} in its maximum period (17
years 4 months and 1 day to 20 years).
Aberratio ictus (mistake in the blow) could not be used as a

defense as it is not an exempting circumstance. Pedrito is
liable under the principle of Art. 4, RPC, which makes a
person criminally liable for all the natural and logical
consequences of his felonious act.
Q: Pascual operated a rice thresher in Barangay Napnud
where he resided. Renato, a resident of the neighboring
Barangay Guihaman, also operated a mobile rice thresher
which he often brought to Barangay Napnud to thresh the
palay of the farmers there. This was bitterly resented by
Pascual. One afternoon Pascual, and his two sons confronted
Renato and his men who were operating their mobile rice
thresher along a feeder road in Napnud. A heated argument
ensued. A barangay captain who was fetched by one of
Pascual's men tried to appease Pascual and Renato to prevent
a violent confrontation. However, Pascual resented the
intervention of the barangay captain and hacked him to
death. What crime was committed by Pascual? Discuss fully.
(1995 Bar)
A: Pascual committed the complex crime of homicide
with assault upon a person in authority (Arts. 148
and 249 in relation to Art, 48, RPC). A barangay
chairman, is in law (Art. 152), a person in authority
and if he is attacked while in the performance of his
official duties or on the occasion thereof the felony
of direct assault is committed.
Art. 48, RPC, on the other hand, provides that if a

single act produces two or more grave or less grave
felonies, a complex crime is committed. Here, the
single act of the offender in hacking the victim to
death resulted in two felonies, homicide which is
grave and direct assault which is less grave.
Q: At about 11:00 in the evening, Dante forced his way
inside the house of Mamerto. Jay, Mamerto's son, saw
Dante and accosted him, Dante pulled a knife and
stabbed Jay on his abdomen. Mamerto heard the
commotion and went out of his room. Dante, who was
about to escape, assaulted Mamerto. Jay suffered
injuries which, were it not for the timely medical
attendance, would have caused his death. Mamerto
sustained Injuries that incapacitated him for 25 days.
What crime or crimes did Dante commit? (1994 Bar)
A: Dante committed qualified trespass to dwelling, frustrated homicide
for the stabbing of Jay, and less serious physical injuries for the
assault on Mamerto.
The crime of qualified trespass to dwelling should not be complexed

with frustrated homicide.
Dante committed frustrated homicide for the stabbing of Jay because

he had already performed all the acts of execution which would
have produced the intended felony of homicide were it not for
causes independent of the act of Dante. Dante had the intent to kill
judging from the weapon used, the manner of committing the
crime and the part of the body stabbed. Dante is guilty of less
serious physical injuries for the wounds sustained by Mamerto.
There appears to be no intent to kill because Dante merely
assaulted Mamerto without using the knife.
10. INDETERMINATE
SENTENCE LAW
(Republic Act No. 4103)
ISLAW : R.A. No. 4103
Purpose of the law: Uplift and redeem valuable human
material and prevent excessive deprivation of personal
liberty. (People v. Ducosin, 59 Phil. 109)
Application: MANDATORY, unless the accused is expressly

disqualified by the ISLAW (People v. Yu Lian, 40 OG 4205)
Court must determine two penalties: the MAXIMUM and

MINIMUM terms.
For purposes of ISLAW, use the term MINIMUM to refer

to the duration of the sentence which the accused shall
serve as a minimum, and MAXIMUM to refer to the
maximum period that he may be held in jail.
Application of ISLAW to the Revised Penal Code:
MINIMUM TERM One degree lower than penalty prescribed
(Sec. 1);
Only privileged mitigating circumstances considered.
MAXIMUM TERM Penalty prescribed, taking into account

mitigating and aggravating circumstances (Art. 64, RPC).
Application of ISLAW to Special Laws:

MINIMUM TERM Not less than the minimum prescribed;
MAXIMUM TERM Not more than the maximum prescribed;

No attendant circumstances considered.
Disqualified Offenders (Sec. 2):
Convicted of offenses punishable with death penalty or life
imprisonment;
Convicted of treason, conspiracy or proposal to commit
treason;
Convicted of misprision of treason, rebellion, sedition,
espionage;
Convicted of piracy;
Habitual delinquents (not recidivists);
Those who escaped from confinement or evaded sentence;
Those granted conditional pardon by the Chief Executive
and shall have violated the term thereof;
Those whose maximum term of imprisonment does not
exceed one year; and
Those whose sentence imposes penalties which do not
involve imprisonment, like destierro.
JURISPRUDENCE
People v. Angeles (2002)
In determining the penalty next lower in degree

for purposes of the Minimum term, the same should
be based on the penalty prescribed by the RPC
without considering any modifying circumstance.
The determination of the minimum penalty is left

by law to the sound discretion of the Court and can
be anywhere within the range of the penalty next
lower without any reference to the periods into
which it might be subdivided.
JURISPRUDENCE
People v. Asuela (2002)
The provisions of the Indeterminate Sentence Law

(ISL) are not applicable to persons convicted of
offenses punished with death or life imprisonment.
Herein, the appellants were convicted of murder,

punishable by Reclusion Perpetua to Death. As such,
the ISL is not applicable.
JURISPRUDENCE
People v. Vitero (2013)
Accused was found guilty of qualified rape under Article

266-A of the RPC. While the Supreme Court upheld here
the CAs ruling that accused be sentenced to suffer the
penalty of reclusion perpetua in lieu of death, he is not
eligible for parole. Section 3 of R.A. No. 9346 provides
that persons convicted of offenses punished with
reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua, by reason of the said law, shall not
be eligible for parole under the Indeterminate Sentence
Law (ISL).
JURISPRUDENCE
Bacolod v. People (2013)
Section 1 of the ISL requires the court, in imposing a prison sentence

for an offense punished by the RPC, or its amendments, to sentence
the accused "to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense." Accordingly, the
maximum of the indeterminate penalty in this case should be within
the range of the medium period of the penalty, i.e., from 16 years and 1
day to 20 years, because neither aggravating nor mitigating
circumstance attended the commission of the crime; and the minimum
of the indeterminate sentence should be within the range of the
penalty next lower in degree to that prescribed for the crime, without
regard to its periods.
JURISPRUDENCE
Lumauig v. People (2014)
The Indeterminate Sentence Law, under Section 2, is

not applicable to cases where the maximum term of
imprisonment does not exceed one year. In
determining "whether an indeterminate sentence and
not a straight penalty is proper, what is considered is
the penalty actually imposed by the trial court, after
considering the attendant circumstances, and not the
imposable penalty."
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Andres is charged with an offense defined by a

special law. The penalty prescribed for the offense
is imprisonment of not less than five (5) years but
not more than ten [10) years. Upon arraignment, he
entered a plea of guilty. In the imposition of the
proper penalty, should the Indeterminate Sentence
Law be applied? If you were the Judge trying the
case, what penalty would you impose on Andres?
(1999 Bar)
A: Yes, the Indeterminate Sentence Law should be

applied because the minimum imprisonment is more
than one (1) year.
If I were the Judge, I will impose an indeterminate

sentence, the maximum of which shall not exceed the
maximum fixed by law and the minimum shall not
be less than the minimum penalty prescribed by the
same. I have the discretion to impose the penalty
within the said minimum and maximum.
Q: Itos was convicted of an offense penalized by a

special law. The penalty prescribed is not less than
six years but not more than twelve years. No
modifying circumstance attended the commission of
the crime. If you were the judge, will you apply the
Indeterminate Sentence Law? If so, how will you
apply it? (1994 Bar)
A: If I were the judge, I will apply the provisions of
the Indeterminate Sentence Law, as the last sentence
of Section 1 Act 4103, specifically provides the
application thereof for violations of special laws.
Under the same provision, the minimum must not

be less than the minimum provided therein (six
years and one day) and the maximum shall not be
more than the maximum provided therein, i.e.
twelve years. (People vs. Rosalina Reyes, 186 SCRA
184)
11. COMPLEX CRIMES
COMPLEX CRIMES : ART. 48
Penalty for complex crimes. When a single act

constitutes two or more grave or less grave
felonies, or when an offense is a necessary means
for committing the other, the penalty for the more
or most serious crime shall be imposed, the same
to be applied in its maximum period. (As amended
by Act No. 4000.)
Art. 48 requires the commission of at least 2 crimes. But

the two or more GRAVE or LESS GRAVE felonies must
be the result of a SINGLE ACT, or an offense must be a
NECESSARY MEANS FOR COMMITTING the other.
In complex crimes, although two or more crimes are

actually committed, they constitute only one crime in the
eyes of the law as well as in the conscience of the
offender. The offender has only one criminal intent. Even
in the case where an offense is a necessary means for
committing the other, the evil intent of the offender is
only one.
Kinds of complex crimes:
Compound crime - When a single act constitutes

two or more grave or less grave felonies
Complex crime proper - When an offense is a

necessary means for committing the other.
Compound crime
Requisites:
That only a SINGLE ACT is performed by the
offender; and
That the single acts produces (a) 2 or more grave
felonies, or (b) one or more grave and one or more
less grave felonies, or (c) two or more less grave
felonies.
Complex crime proper
Requisites:
1. That at least two offenses are committed;
2. That one or some of the offenses must be necessary
to commit the other; and
3. That both or all the offenses must be punished
under the same statute.
PLURALITY OF CRIMES refers to the successive

execution by the same individual of different criminal
acts upon any of which no conviction has yet been
declared.
Kinds:
1. Formal or ideal plurality
2. Real or material plurality
Formal or ideal plurality
There is only one criminal liability in this kind of plurality.

This type of plurality is further divided into three (3) groups:
a. When the offender commits any of the complex crimes

defined in Art. 48 of the Code.
b. When the law specifically fixes a single penalty for 2 or
more offenses committed.
c. When the offender commits continued crimes.
Real or material plurality
There are different crimes in law as well as in

the conscience of the offender. In such cases, the
offender shall be punished for each and every offense
that he committed.
Article 48 is inapplicable:
1. if one offense is punished by a special law;

2. if the two felonies have a common element (e.g. estafa
through falsification of a private document, as both require
damage);
3. if one offense is an element of another where doctrine of
absorption applies;
4. if two offenses from a single act are specifically punished as
one;
5. in special complex crimes;
6. if crimes involved cannot be legally complexed; and
7. if one crime is a light felony as the law requires grave and
less grave felonies.
JURISPRUDENCE
People v. Comadre (2004)
The single act by appellant of detonating a hand

grenade may quantitatively constitute a cluster of
several separate and distinct offenses, yet these
component criminal offenses should be considered
only as a single crime in law on which a single
penalty is imposed because the offender was
impelled by a single criminal impulse which
shows his lesser degree of perversity.
JURISPRUDENCE
People v. Desierto (C.A. 45 O.G. 4542, as cited in People v.

Tabaco, 1997)
Although it is true that several successive shots (from a

Thompson sub-machine gun) were fired by the accused in a
short space of time, yet the factor which must be taken into
consideration is that, to each death caused or physical injuries
inflicted upon the victims, corresponds a distinct and separate
shot fired by the accused, who thus made himself criminally
liable for as many offenses as those resulting from every singe
act that produced the same. Although apparently he
perpetrated a series of offenses successively in a matter of
seconds, yet each person killed and each person injured by
him became the victim, respectively, of a separate crime of
homicide or frustrated homicide.
JURISPRUDENCE
Monteverde v. People (2002)
Under Article 48 of the Revised Penal Code, a

complex crime refers to (1) the commission of at
least two grave or less grave felonies that must both
(or all) be the result of a single act, or (2) one offense
must be a necessary means for committing the other
(or others). Negatively put, there is no complex
crime when (1) two or more crimes are committed,
but not by a single act; or (2) committing one crime
is not a necessary means for committing the other
(or others).
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: A police officer surreptitiously placed a marijuana

stick in a students pocket and then arrested him for
possession of marijuana cigarette. What crime can the
police officer be charged with?
A. None, as it is a case of entrapment
B. Unlawful arrest
C. Incriminating an innocent person
D. Complex crime of incriminating an innocent person with
unlawful arrest.(2011 Bar)
Q: X, intending to kill Y, a store owner, fired at Y from

the street, but the shot killed not only Y but also Z
who was in the store. As a case of aberratio ictus, it is
punishable as a
A. complex crime proper.
B. special complex crime.
C. continuing crime.
D. compound crime. (2011 Bar)
Q: Distinguish between an ordinary complex

crime and a special complex crime as to their
concepts and as to the imposition of penalties.
(2003 Bar)
A:
IN CONCEPT -
An ORDINARY COMPLEX CRIME is made up of two or
more crimes being punished in distinct provisions of the
Revised Penal Code but alleged in one Information either
because they were brought about by a single felonious act or
because one offense is a necessary means for committing the
other offense or offenses. They are alleged in one Information
so that only one penalty shall be imposed.
A SPECIAL COMPLEX CRIME, on the other hand, is made

up of two or more crimes which are considered only as
components of a single indivisible offense being punished in
one provision of the Revised Penal Code.
AS TO PENALTIES
In ORDINARY COMPLEX CRIME, the penalty for the

most serious crime shall be imposed and in its
maximum period.
In SPECIAL COMPLEX CRIME, only one penalty is

specifically prescribed for all the component crimes
which are regarded as one indivisible offense. The
component crimes are not regarded as distinct crimes
and so the penalty for the most serious crime is not the
penalty to be imposed nor in its maximum period.
12. EXEMPTING
CIRCUMSTANCES
EXEMPTING CIRCUMSTANCES : ART. 12
Exempting circumstances (non-imputability) are those

grounds for exemption from punishment because there is
wanting in the agent of the crime any of the condition which
makes the act voluntary or negligent.
The exemption from punishment is based on the

COMPLETE ABSENCE of intelligence, freedom of action, or
intent, or on the absence of negligence on the part of the
accused.
One who acts by virtue of any of the exempting

circumstances commits a crime, although by the
complete absence of any of the conditions which
constitute free will or voluntariness of the act, no
criminal liability arise.
Circumstances which exempt from criminal liability. the

following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted

during a lucid interval.
When the imbecile or an insane person has committed an act

which the law defines as a felony (delito), the court shall
order his confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not be
permitted to leave without first obtaining the permission of
the same court.
2. A person under nine years of age.*
3. A person over nine years of age and under fifteen, unless he

has acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Art. 80 of
this Code.*
When such minor is adjudged to be criminally irresponsible, the

court, in conformity with the provisions of this and the preceding
paragraph, shall commit him to the care and custody of his
family who shall be charged with his surveillance and education
otherwise, he shall be committed to the care of some institution
or person mentioned in said Art. 80.
- - - - - - - -- - - - - - - - - - - - -
*Modified by Republic Act No. 9344 (2006)
4. Any person who, while performing a lawful act with due

care, causes an injury by mere accident without fault or
intention of causing it.
5. Any person who acts under the compulsion of an

irresistible force.
6. Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.
7. Any person who fails to perform an act required by law,

when prevented by some lawful or insuperable cause.
EXEMPTING CIRCUMSTANCES :
ART. 12 par. 1
Par. 1 AN IMBECILE OR INSANE PERSON, UNLESS THE
LATTER HAS ACTED DURING A LUCID INTERVAL
Imbecile
one who, while advanced in age, has a mental development
comparable to that of children between 2 and 7 years of age.
one who is deprived completely of reason or discernment
and freedom of the will at the time of committing the crime.
exempt in all cases from criminal liability
ART. 12 par. 1
Insane
Considered as an exempting circumstance when there is a

complete deprivation of intelligence in committing the act
but capable of having lucid intervals. During a lucid
interval, the insane acts with intelligence and thus, not
exempt from criminal liability.
Insanity will only excuse the commission of a criminal act,

when it is made affirmatively to appear that the person
committing it was insane, and that the offense was the direct
consequence of his insanity (People v. Ambal, 1980).
ART. 12 par. 1
Criterion for insanity:
So far, under our jurisdiction, there has been no case that lays down a
definite test or criterion for insanity. However, We can apply as test
or criterion the definition of insanity under Section 1039 of the
Revised Administrative Code, which states that insanity is "a
manifestation in language or conduct, of disease or defect of the
brain, or a more or less permanently diseased or disordered
condition of the mentality, functional or organic, and characterized
by perversion, inhibition, or by disordered function of the sensory or
of the intellective faculties, or by impaired or disordered volition."
Insanity as defined above is evinced by a deranged and perverted
condition of the mental faculties which is manifested in language or
conduct. An insane person has no full and clear understanding of the
nature and consequence of his act. (People v. Dungo, 1991)
ART. 12 par. 1
Feeblemindedness is not imbecility because a feeble-minded

person can distinguish right from wrong.
Medical conditions which may be considered as exempting

circumstances:
Dementia praecox
Kleptomania if found by a competent psychiatrist as
irresistible
Epilepsy
Somnambulism sleep-walking
Malignant malaria which affects the nervous system
ART. 12 par. 2
Par. 2. A PERSON UNDER (FIFTEEN) YEARS OF
AGE, as amended by R.A. No. 9344.
Fifteen years or less presumed to be incapable of

committing a crime, and this presumption is an
absolute one which cannot be overcome by any
evidence.
Senility, although said to be the second childhood, is

only mitigating.
ART. 12 par. 2
3 PERIODS OF THE
LIFE OF A HUMAN BEING
a. 15 years and below:

AGE OF ABSOLUTE IRRESPONSIBILITY
b. between 15 and 18 years:

AGE OF CONDITIONAL RESPONSIBILITY
c. 18 or over to 70 years
AGE OF FULL RESPONSIBILITY
ART. 12 par. 3
In our jurisdiction, a person under nine years of age is conclusively
presumed to have acted without discernment, and is, on that
account, exempt from criminal liability. The same presumption and a
like exemption from criminal liability obtains in a case of a person
over nine and under fifteen years of age, unless it is shown that he
has acted with discernment. Since negligence may be a felony and a
quasi-delict and required discernment as a condition of liability,
either criminal or civil, a child under nine years of age is, by analogy,
conclusively presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in
the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory
negligence as a matter of law. (Jarco Marketing Corp. v. Court of Appeals,
1999) (N.B. R.A. No. 9344 changed this rule.)
ART. 12 par. 3
Par. 3. A PERSON OVER (15) YEARS OF AGE AND UNDER

(18) UNLESS HE HAS ACTED WITH DISCERNMENT, IN
WHICH CASE, SUCH MINOR SHALL BE PROCEEDED
AGAINST IN ACCORDANCE WITH THE PROVISIONS OF
(R.A. 9344)
A minor over 15 and under 18 years of age must have acted

without discernment to be fully exempted from criminal liability.
Discernment means the mental capacity of a minor to fully

appreciate the nature and consequences of his act (Llave v. People,
2006)
DISCERNMENT INTENT
Moral significance that a Desired act of the person

person ascribes to the said
act
i.e. A person may not intend to shoot another but may be aware of
the consequences of his negligent act which may cause injury
to the same person in negligently handling an air rifle. Thus,
for a minor (above 15, below 18) to be criminally liable for
negligence, he must discern the rightness or wrongness of the
effects of his negligent act.(Guevarra v. Almodovar, 1989)
Discernment may be shown by

1. the manner the crime was committed; or
2. the conduct of the offender after its commission.
ART. 12 par. 4
Par. 4: ANY PERSON WHO, WHILE PERFORMING A

LAWFUL ACT WITH DUE CARE, CAUSES AN INJURY BY
MERE ACCIDENT WITHOUT FAULT OR INTENTION OF
CAUSING IT.
Accident something that happen outside the sway of our

will and although it comes about through some act of our
will, lies beyond the bounds of humanly foreseeable
consequences.
If the consequences are plainly foreseeable, it will

be a case of negligence (Reyes, p. 223).
EXEMPTING CIRCUMSTANCES : ART. 12 par. 4
Pomoy v. People (2004)
From the facts, it is clear that all these elements were present. At
the time of the incident, petitioner was a member -- specifically, one
of the investigators -- of the Philippine National Police (PNP)
stationed at the Iloilo Provincial Mobile Force Company. Thus, it was
in the lawful performance of his duties as investigating officer that,
under the instructions of his superior, he fetched the victim from the
latters cell for a routine interrogation.
Again, it was in the lawful performance of his duty as a law
enforcer that petitioner tried to defend his possession of the weapon
when the victim suddenly tried to remove it from his holster. As an
enforcer of the law, petitioner was duty-bound to prevent the
snatching of his service weapon by anyone, especially by a detained
person in his custody. Such weapon was likely to be used to facilitate
escape and to kill or maim persons in the vicinity, including
petitioner himself.
EXEMPTING CIRCUMSTANCES : ART. 12 par. 4
Pomoy v. People (2004)
Petitioner cannot be faulted for negligence. He exercised

all the necessary precautions to prevent his service weapon
from causing accidental harm to others. As he so
assiduously maintained, he had kept his service gun locked
when he left his house; he kept it inside its holster at all
times, especially within the premises of his working area.
At no instance during his testimony did the accused
admit to any intent to cause injury to the deceased, much
less kill him.
The participation of petitioner, if any, in the victims
death was limited only to acts committed in the course of
the lawful performance of his duties as an enforcer of the
law.
ART. 12 par. 5
Par. 5: ANY PERSON WHO ACTS UNDER THE

COMPULSION OF IRRESISTIBLE FORCE
Elements:
1. That the compulsion is by means of physical force;
2. That the physical force must be irresistible; and
3. That the physical force must come from a third person.
Before force can be considered to be an irresistible one, it must

produce such an effect upon the individual that, in spite of all
resistance, it reduces him to a mere instrument and, as such,
incapable of committing a crime.
ART. 12 par. 6
Par. 6: ANY PERSON WHO ACTS UNDER THE IMPULSE

OF AN UNCONTROLLABLE FEAR OF AN EQUAL OR
GREATER INJURY
Requisites:
1. That the threat which causes the fear is of an evil greater
than or at least equal to, that which he is required to
commit; and
2. That it promises an evil of such gravity and imminence

that the ordinary man would have succumbed to it.
ART. 12 par. 7
Par. 7: ANY PERSON WHO FAILS TO PERFORM AN ACT

REQUIRED BY LAW, WHEN PREVENTED BY SOME
LAWFUL OR INSUPERABLE CAUSE
Requisites:
1. That an act is required by law to be done;
2. That a person fails to perform such act; and
3. That his failure to perform such act was due
to some lawful or insuperable cause.
JURISPRUDENCE
People v. Bagaoisan (2011)
It is axiomatic that a person who invokes accident

must prove that he acted with due care. In this case,
accuseds conduct cannot be characterized as an accident.
When the victim handed over the shotgun to accused, said
accused placed his trigger finger inside the trigger guard
and over the trigger itself, while the muzzle is pointed at the
victim. The Court did not believe accuseds allegation that
at the moment he held the shotgun, he almost slipped while
in the act of gripping and then immediately the gun went
off.
JURISPRUDENCE
People v. Isla (2012)
Anyone who pleads the exempting circumstance of

insanity bears the burden of proving it with clear and
convincing evidence. It is in the nature of confession
and avoidance and an accused invoking insanity admits
to have committed the crime but claims that he or she is
not guilty because of insanity. The testimony or proof of
the insanity of the accused must, however, relate to the
time immediately preceding or simultaneous with the
commission of the offense with which he is charged.
BAR QUESTIONS
and
SUGGESTED ANSWERS
As a modifying circumstance, insanity
A. is in the nature of confession and avoidance.

B. may be presumed from the offenders previous
behavior.
C. may be mitigating if its presence becomes apparent
subsequent to the commission of the crime.
D. exempts the offender from criminal liability
whatever the circumstances. (2011 Bar)
Insuperable cause is an exempting circumstance which

may be applied to:
A. robbery.
B. misprision of treason.
C. homicide.
D. rebellion. (2011 Bar)
13. BOUNCING CHECKS LAW
(Batas Pambansa Blg. 22)
Bouncing Checks Law : B.P. Blg. 22
Two (2) modes of violating B.P. Blg. 22 (Section 1):
First mode:
a. Person makes or draws and issues a check to apply on account or
on value;
b. Maker/Drawer knows at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for the payment
of such check in full upon its presentment;
c. Check is subsequently dishonored for insufficiency of funds or
credit, or would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to stop
payment.
Second mode:
a. A person has sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check;
b. He fails to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within 90 days from the date
appearing;
c. The check is dishonored by the drawee bank.
Distinction between estafa under Article 315 (2) (d) of the Revised
Penal Code and violation of B.P. Blg. 22:
a. Under both Article 315 (2) (d) and B.P. Blg. 22, there is criminal
liability if the check is drawn for non-pre-existing obligation. If
the check is drawn for a pre-existing obligation, there is criminal
liability only under B.P. Blg. 22.
b. Estafa under Article 315 (2) (d) is a crime against property while
B.P. Blg. 22 is a crime against public interest. The gravamen for
the former is the deceit employed, while in the latter, it is the
issuance of the check. Hence, there is no double jeopardy.
c. In the estafa under Article 315 (2) (d), deceit and damage are
material, while in B.P. Blg. 22, they are immaterial.
d. In estafa under Article 315 (2) (d), knowledge by the drawer of

insufficient funds is not required, while in B.P. Blg. 22,
knowledge by the drawer of insufficient funds is required.
Rule of evidence #1:
There is a prima facie evidence of knowledge of

insufficient funds when the check was presented within
ninety (90) days from the date appearing on the check and
was dishonored (Sec. 3).
Exceptions:
a. When the check was presented after 90 days from date;
b. When the maker or drawer pays the holder of the check
the amount due or makes arrangements for payment in
full by the drawee of such check within five banking
days after receiving notice that such check has not been
paid by the drawee.
Rule of evidence #2:
The prima facie evidence of making and issuance of a

check, due presentment and dishonor thereof arises when
the dishonored check, duly stamped as dishonored for
__________ or dishonored for insufficient credit by the
drawee bank, is presented as evidence (Sec. 4).
N.B.: Sections 3 and 4 in B.P. Blg. 22 prosecutions relate to

evidentiary rules and presumptions. These do not relate to the
elements per se of B.P. Blg. 22 violations.
JURISPRUDENCE
Bernardo v. People (2007)
As clarified by Administrative Circular 13-2001, the

clear tenor and intention of Administrative Circular
12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of
preference in the application of the penalties provided
for in B.P. 22.
JURISPRUDENCE
Macalalag v. People (2006)
Only a full payment of the face value of the second

check at the time of its presentment or during the
five-day grace period could have exonerated her
from criminal liability.
A contrary interpretation would defeat the purpose

of B.P. Blg. 22, that of safeguarding the interest of the
banking system and the legitimate checking account
user, as the drawer could very well have himself
exonerated by the mere expediency of paying a
minimal fraction of the face value of the check.
JURISPRUDENCE
Gidwani v. People (15 January 2014)
An order for the suspension of payment issued by

the Securities and Exchange Commission is a valid
reason to stop payment of a check when such order
was issued prior to the presentment of the check
and the accused was able to show that the bank
accounts was closed pursuant to the order
JURISPRUDENCE
People v. Nitafan (1992)
A memorandum check, one used as evidence for a

debt, is not a promissory note and falls within the
coverage of B.P. Blg. 22.
Que v. People (1987)
Checks issued simply to guaranty payment of an

obligation, but were dishonored when presented for
payment, are covered by B.P. Blg. 22.
JURISPRUDENCE
Nierras v. Dacuycuy (1990)
There is no double jeopardy if the drawer or issuer

of a check that was dishonored is indicted both in
estafa under Art. 315, RPC and violation of B.P. Blg.
22. Estafa is malum in se and requires damage as a
crime against property. Violation of B.P. Blg. 22, on
the other hand, is malum prohibitum, and damage
is not required as a crime against public order.
Estafa attaches if there is no pre-existing obligation.

Liability under B.P. Blg. 22 attaches even if check
that bounced was paid for a pre-existing debt.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Jane is a money lender. Edmund is a businessman who has
been borrowing money from Jane by rediscounting his
personal checks to pay his loans. In March 1989, he borrowed
P100,000 from Jane and issued to her a check for the same
amount. The check was dishonored by the drawee bank for
having been drawn against a closed account. When Edmund
was notified of the dishonor of his check he promised to raise
the amount within five days. He failed. Consequently, Jane
sued Edmund for violation of the Bouncing Checks Law (BP.
Blg. 22). The defense of Edmund was that he gave the check
to Jane to serve as a memorandum of his indebtedness to her
and was not supposed to be encashed. Is the defense of
Edmund valid? Discuss fully. (1995 Bar)
A: The defense of Edmund is NOT valid. A memorandum

check upon presentment is generally accepted by the bank.
It does not matter whether the check is in the nature of a
memorandum as evidence of indebtedness. What the law
punishes is the mere issuance of a bouncing check and not
the purpose for which it was issued nor the terms and
conditions relating thereto. The mere act of issuing a
worthless check is a malum prohibitum. The understanding
that the check will not be presented at the bank but will be
redeemed by the maker when the loan falls due is a mere
private arrangement which may not prevail to exempt it
from the penal sanction of B.P. Blg. 22. (People v. Nitafan)
Q: A, a businessman, borrowed P500,000.00 from B, a

friend. To pay the loan, A issued a postdated check to be
presented for payment 30 days after the transaction. Two
days before the maturity date of the check, A called up B
and told him not to deposit the check on the date stated on
the face thereof, as A had not deposited in the drawee
bank the amount needed to cover the check. Nevertheless,
B deposited the check in question and the same was
dishonored of insufficiency of funds. A failed to settle the
amount with B in spite of the latter's demands. Is A guilty
of violating B.P. Blg. 22, otherwise known as the Bouncing
Checks Law? Explain. (2002 Bar)
A: Yes, A Is liable for violation of BP. Blg. 22 (Bouncing
Checks Law), Although knowledge by the drawer of
insufficiency or lack of funds at the time of the issuance
of the check is an essential element of the violation, the
law presumes prima facie such knowledge, unless
within five (5) banking days of notice of dishonor or
nonpayment, the drawer pays the holder thereof the
amount due thereon or makes arrangements for
payment in full by the drawee of such checks.
A mere notice by the drawer A to the payee B before the

maturity date of the check will not defeat the
presumption of knowledge created by the law;
otherwise, the purpose and spirit of B.P. 22 will be
rendered useless.
Q: Mr. Benjie is the owner of a hardware store specializing in the sale of
plumbing materials. On February 1, 2014, Mr. Ed, a friend and regular
customer of Mr. Benjie, visited the hardware store and purchased several
plumbing materials in the total amount of P5 million. Mr. Benjie readily
accepted Mr. Eds payment of three (3) postdated checks in the amount
of P1 million Pesos each in view of the assurance of Mr. Ed that the
checks will be honored upon presentment for payment. Mr. Benjie, as a
consequence, immediately delivered the materials to the house of Mr. Ed.
The following day, Mr. Ed went back to Mr. Benjie to tender another two
(2) postdated checks in the amount of P1 million each to complete the
payment, with the same assurance that the checks will be honored upon
presentment for payment. When the checks were presented for payment,
all were dishonored for insufficiency of funds and corresponding notices
of dishonor were sent and received by Mr. Ed. One month after receipt of
the notices of dishonor, Mr. Ed failed to make good the checks.
Thereafter, Mr. Benjie filed before the public prosecutors office a
complaint against Mr. Ed, although no demand letter was earlier sent to
Mr. Ed. (question is continued in next slide)
During the preliminary investigation, Mr. Benjie accepted several
amounts from Mr. Edas partial payments. The wife of Mr. Benjie
protested and insisted that the complaint should continue despite the
partial payments. On the other hand, Mr. Ed counters that no
demand letter was earlier sent to him, that the obligation is merely
civil in character and that novation took place when Mr. Benjie
accepted the partial payments. Discuss the criminal liability, if any, of
Mr. Ed. (2014 Bar)
A: As regards the first three (3) postdated checks, Mr. Ed is liable for
the separate crimes of Estafa and B.P. 22. Mr. Ed is liable for estafa
under Art. 315 (2)(d) because he issued the 3 checks simultaneous
with the transaction in order to defraud another. For the two (2)
checks issued the following day, Mr. Ed is liable for B.P. 22, but not
Estafa under Art. 315(2)(d) because there is already a pre-existing
obligation between them after the first 2 payments. (answer continued
in next slide)
Absence of demand letter is irrelevant because, in this case, notices

of dishonor were sent and received by Mr. Ed. That satisfies the due process
requirement under B.P. 22. In Betty King v. People, G.R. No. 131540 December
2, 1999, the Supreme Court ruled that under Batas Pambansa Blg. 22 (BP
22), the prosecution must prove not only that the accused issued a check
that was subsequently dishonored. It must also established that the accused
was actually notified that the check was dishonored, and that he or she
failed, within five banking days from receipt of the notice, to pay the holder
of the check the amount due thereon or to make arrangement for its
payment. Absent proof that the accused received such notice, a prosecution
for violation of the Bouncing Check Law cannot prosper. In this case, it is
clear that one month after receipt of the notices of dishonor, Mr. Ed failed to
make good the checks. (answer continued in next slide)
Partial payments are immaterial. All the elements of the crime of Estafa
were present when the partial payments were made. As regards violation of B.P.
22, the gravamen of the offense under B.P. 22 is the act of issuing a worthless
check or a check that is dishonored upon its presentment for payment, not the
nonpayment of the obligation as ruled in Lozano v. Martinez, G.R. No. L-63419, 18
December 1986. It is thus irrelevant to consider subsequent partial payments. Thus,
Mr. Eds partial payments cannot extinguish the crimes which has already been
consummated.
Also, the defense of novation is untenable. In Narciso Degaos v. People,
G.R. No. 162826, 14 October 2013, the Supreme Court ruled that novation is not one
of the grounds prescribed by the Revised Penal Code for the extinguishment of
criminal liability. Novation is relevant only to determine if the parties have
meanwhile altered the nature of the obligation prior to the commencement of the
criminal prosecution in order to prevent the incipient criminal liability of the
accused.
In this case, there is no novation in the acceptance of partial payments by
Mr. Benjie. Even if such amounts to a novation, the same cannot be considered
relevant because there were already complaints filed before the public prosecutor
for preliminary investigation. (Metropolitan Bank and Trust Company v. Reynado,
G.R. No. 164538, 9 August 2010).
14. DANGEROUS DRUGS ACT
of 2002 (R.A. No. 9165)
Dangerous Drugs Act : R.A. No. 9165
Definitions (Art. I, Sec. 3):

Take note of the following terms:
Dangerous Drugs [DD] (par. j), compare with

Controlled Precursors and Essential Chemicals
[CPAEC](par. h);
Chemical Diversion (par. d), contrast with Controlled
Delivery (par. g) and Illegal Trafficking (par. r);
Den, Dive or Resort (par. l);
Drug Dependence (par. m);
Drug Syndicate (par. o); and
Financier (par. q) vs. Protector/Coddler (par. ee).
Prohibited Acts (Art. II, Secs. 4-19):
a. Importation of DD or CPAEC;
b. Cultivation of plants known to produce DD or CPAEC;
c. Sale, Trade, Administration, Dispensation, Delivery,
Distribution and Transportation of DD or CPAEC;
d. Maintenance of a Den, Dive or Resort;
Den, Dive or Resort shall be confiscated and escheated in
favor of the government;
Knowingly working at or visiting the Den, Dive or Resort
is punishable.
e. Manufacturing DD or CPAEC or tools and instruments
used for the same.
f. Illegal Chemical Diversion of DD or or CPAEC;

g. Unlawful or unnecessary prescription of DD or CPAEC;
h. Failure to keep proper records of legal
importation/distribution of DD or CPAEC;
i. ILLEGAL POSSESSION:
DD or CPAEC;
Tools/Instruments used for the same;
DD or CPAEC during social gatherings (at least 2
people)
j. ILLEGAL USE OF DD or CPAEC (2nd Offense or more);
k. Violation of any Dangerous Drugs Board [DDB]
regulation.
Liability of public officers
i. Misappropriation or failure to account for DD/CPAEC or
paraphernalia confiscated/used as evidence;
ii. planting DD/CPAEC as evidence.
Attempt or Conspiracy (Sec. 26):

An attempt or conspiracy to commit the following are
punishable. Penalty same as if consummated:
i. Importation of DD/CPAEC;
ii. Sale, trade, administration, dispensation, distribution of
DD/CPAEC;
iii. Maintaining den, dive or resort;
iv. Manufacture of DD/CPAEC;
v. Cultivation of plants known to be sources of DD/CPAEC;
Plea Bargaining (Sec. 23):
Any person charged with a violation of RA 9165 cannot
avail of plea bargaining.
Probation (Sec. 24):

Convicted drug traffickers or pushers cannot apply for
probation.
Drug Use as a Qualifying Aggravating Circumstance (Sec.

25):
Commission of an offense by a culprit under the
influence of dangerous drugs.
There must be a positive finding of drug use.
When Drug Tests are Required (Sec. 36):
a. Applications for Drivers License;

b. Applications for Firearms License/Permit;
c. Secondary/Tertiary School students;
d. Officers/Employees in Private companies; and
e. Public Officers/Employees, incl. Members of law enforcement
units.
N.B. Drug tests of: (a) persons charged before the prosecutors office, and
(b) candidates for public office, or Section 36 (f) and (g) were declared
unconstitutional by the Supreme Court in Social Justice Society v.
Dangerous Drugs Board (G.R. No. 157870, 3 November 2008).
Drug Rehabilitation Programs (Art. VIII)
Voluntary Submission Program (Sec. 54):

1. File Application For Voluntary Rehabilitation with the
DDB or its representative;
2. Board transmits the application to the Court, which
shall order the applicant to undergo drug testing.
3. If the applicant is found to be drug dependent, Court
shall order him to undergo treatment for 6m-1yr.
4. Participants in the VSP are EXEMPT from criminal
liability, if qualified under Sec. 55:
i. Complied with the rules and regulations of the
Center;
ii. First-time Offender (DD Use);
iii. No record of escape from rehabilitation center or
surrendered within one week from escape;
iv. Does not pose a serious danger to himself or to
the public.
Drug Rehabilitation Programs (Art. VIII)
Compulsory Submission Program (Sec. 61):

1. DDB files a Petition to Rehabilitate a drug dependent
with the Court, which shall order the applicant to undergo
drug testing.
APPLIES TO DRUG DEPENDENTS CHARGED
WITH AN OFFENSE (SEC. 62)
2. If the applicant is found to be drug dependent, Court
shall issue a Commitment Order charging him to undergo
treatment and rehabilitation.
3. Minors found to be first time offenders entitled to
suspended sentence (superseded by R.A. No. 9344).
JURISPRUDENCE
People v. Tiu (2003)
In illegal possession prosecutions, it must be shown that 1)

the appellants were in possession of an item or object
identified to be a prohibited drug; 2) such possession is not
authorized by law; and 3) the appellants were freely and
consciously aware of being in possession of the drug.
Violation of the DDA is malum prohibitum. Good faith or lack

of criminal intent is not relevant.
People v. Balag-ey (2004)
Possession of prohibited drugs is a necessary element in the

sale of prohibited drugs, except where the seller is found to
be in possession of another quantity of drugs not included
in the sale and probably intended for some future dealings
or use by the seller.
JURISPRUDENCE
Suson v. People (2006)
Settled is the rule that in the prosecution for the sale of
dangerous drugs, the absence of marked money does not
create a hiatus in the evidence for the prosecution as long
as the sale of dangerous drugs is adequately proven and
the drug subject of the transaction is presented before the
court.
People v. Jubail (2004)

The general rule is that the buy bust money or the
informant need not be presented during trial. However,
where the informant is the only eyewitness to the illegal
transaction, his testimony is essential and his non-
presentation would be fatal to the prosecutions cause.
JURISPRUDENCE
People v. Nicolas (2007)
Settled is the rule that the absence of a prior

surveillance or test-buy does not affect the legality of
the buy-bust operation.
JURISPRUDENCE
People v. Barba (2009)
The essential elements in a prosecution for sale of illegal

drugs are: (1) the identities of the buyer and the seller, the
object, and consideration; and (2) the delivery of the thing
sold and the payment for it. The prohibited drug is an
integral part of the corpus delicti of the crime of possession
or selling of regulated/prohibited drug; proof of its identity,
existence, and presentation in court are crucial. A
conviction cannot be sustained if there is a persistent doubt
on the identity of the drug. The identity of the prohibited
drug must be established with moral certainty. Apart from
showing that the elements of possession or sale are present,
the fact that the substance illegally possessed and sold in
the first place is the same substance offered in court as
exhibit must likewise be established with the same degree
of certitude as that needed to sustain a guilty verdict.
JURISPRUDENCE
The identity of the subject substance is established by

showing the chain of custody. In Espinoza v. State, an
adequate foundation establishing a continuous chain of
custody is said to have been established if the State accounts
for the evidence at each stage from its acquisition to its
testing, and to its introduction at trial. In a prosecution for
sale of illegal drugs, this foundation takes more significance
because of the nature of the evidence involved. The more
fungible the evidence, the more significant its condition, or
the higher its susceptibility to change, the more elaborate the
foundation must be. In those circumstances, it must be shown
that there has been no tampering, alteration, or substitution.
JURISPRUDENCE
The chain of custody requirements that must be met in

proving that the seized drugs are the same ones presented
in court comprises of: (1) testimony about every link in the
chain, from the moment the item was picked up to the time
it is offered into evidence; and (2) witnesses should
describe the precautions taken to ensure that there had
been no change in the condition of the item and no
opportunity for someone not in the chain to have
possession of the item.
JURISPRUDENCE
People v. Sabadlab (18 January 2012)
In cases involving violations of R.A. 9165, the testimony of
police officers as prosecution witnesses is given more weight
because it is presumed that they performed their duties in a
regular manner. In the absence of evidence suggesting ill
motive on the part of the police officers or deviation from the
regular performance of their duties, the presumption will
stand.
People v. Posada (12 March 2012)

The Supreme Court elucidated that the meaning of the word
having possession of includes constructive possession.
Although the owner of the drug is not in actual possession of
the drug, but if the drug remains under his control and
management, he is still deemed to be in possession of the
same.
JURISPRUDENCE
People v. Cananto (5 March 2014)
The buy bust or entrapment operation against the accused

is unlawful. The accused is entitled to acquittal where
presentation of evidence is wanting and that the
dangerous drugs secured from the accused is the same
drugs presented to the court because the corpus delicti is
absent, an essential element of illegal possession and
illegal sale of dangerous drugs, without any explanation
addressed to justify the non-observance of the prescribed
procedure of the chain of custody rule.
JURISPRUDENCE
People v. Morate (29 January 2014)
The law recognizes that, while the presentation of a

perfect unbroken chain is ideal, the realities and variables
of actual police operation usually makes an unbroken
chain impossible. With this implied judicial recognition
of the difficulty of complete compliance with the
chain of custody requirement, substantial compliance is
sufficient as long as the integrity and evidentiary value of
the seized items are properly preserved by the
apprehending police officers.
JURISPRUDENCE
People v. Salvador (10 February 2014)
The commission of the offense of illegal sale of dangerous

drugs merely requires the consummation of the selling
transaction, which happens the moment the exchange of
money and drugs between the buyer and the seller takes
place.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: At about 9 o'clock in the morning, a Narcom Group laid a
plan to entrap and apprehend A, a long suspected drug dealer,
through a "buy-bust" operation. At the appointed time, the
poseur-buyer approached A who was then with B. A marked
P100 bill was handed over to A who in turn, gave the poseur-
buyer one (1) tea bag of marijuana leaves. The members of the
team, who were then positioned behind thick leaves, closed in
but evidently were not swift enough since A and B were able to
run away. Two days later, A was arrested in connection with
another incident. It appears that during the operations, the
police officers were not able to seize the marked money but were
able to get possession of the marijuana tea bag. A was
subsequently prosecuted for violation of Section 4, Article II of
Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act, During the trial, the marked money was not
presented. Can A be held liable? Explain. (2000 Bar)
A: Yes. A can be held liable. The absence of the marked
money will not create a hiatus in the prosecution's
evidence as long as the sale of the dangerous drugs is
adequately proven and the drug subject of the transaction
is presented before the court. There was a perfected
contract of sale of the drug (People vs. Ong Co, 245 SCRA
733; People vs. Zervoulakos, 241 SCRA 625).
Q: Obie Juan is suspected to have in his possession an

unspecified amount of methamphetamine hydrochloride
or "shabu". An entrapment operation was conducted by
police officers, resulting in his arrest following the
discovery of 100 grams of the said dangerous drug in his
possession. He was subjected to a drug test and was found
positive for the use of marijuana, another dangerous drug.
He was subsequently charged with two crimes: Violation
of Section 11, Article II of RA 9165 for the possession of
"shabu" and violation of Section 15, Article II of RA 9165
for the use of marijuana. (2005 Bar)
a) Are the charges proper? Explain.
No. The use of dangerous drugs is not committed when Obie
Juan was also found to have in his possession such quantity
of any dangerous drug. (See s. 11 and 16, RA. No. 9165)
b) So as not to be sentenced to death, Obie Juan offers to plead

guilty to a lesser offense. Can he do so? Why?
No. Obie Juan cannot plead guilty to a lower offense as it is
prohibited under the law. (Section 23, RA. No. 9165) Any
person charged under any provision of this Act regardless of
the imposable penalty shall not be allowed to avail of the
provision on plea-bargaining.
Q: MNO, who is 30 years old, was charged as a drug
pusher under the Comprehensive Dangerous Drugs Act
of 2002. During pre-trial, he offered to plead guilty to the
lesser offense concerning use of dangerous drugs.
Should the Judge allow MNO's plea to the lesser
offense? Explain briefly. (2004 Bar)
A: No, the Judge should not allow MNO's plea to a

lesser offense, because plea-bargaining in prosecutions
of drug- related cases is no longer allowed by Rep. Act
No. 9165, the Comprehensive Dangerous Drugs Act of
2002, regardless of the imposable penalty.
15. MALVERSATION OF
PUBLIC PROPERTY
MALVERSATION : ART. 217
Malversation of public funds or property
Acts punishable:
1. Appropriating public funds or property;
2. Taking or misappropriating the same;
3. Consenting, through abandonment or negligence,
and/or permitting any other person to take such
public funds or property; and
4. Being otherwise guilty of the misappropriation or
malversation of such funds or property.
Elements common to all acts of malversation under

Article 217:
1. Offender is a public officer;
2. He had the custody or control of funds or
property by reason of the duties of his office;
3. Those funds or property were public funds
or property for which he was accountable;
and
4. He appropriated, took, misappropriated or
consented or, through abandonment or
negligence, permitted another person to take
them.
N.B. Private property may be involved in malversation.
This article applies to administrators or depositories of
funds or property attached, seized, or deposited by
public authority, even if such property belongs to a
private individual.
Presumption from failure to have duly forthcoming

public funds or property upon demand is prima
facie evidence that the said funds have been put to
personal use. This may be rebutted.
Demand not necessary in malversation in

spite of the last paragraph in Art. 217 as the
latter provides only for a rule of procedural
law, a rule of evidence and no more.
Damage to Government not necessary.

Penalty is based on the amount involved,
not on the amount of damage to the
government.
JURISPRUDENCE
Quinon v. People (2002)
An accountable public officer, within the purview of

Article 217 of the RPC, is one who has custody or
control of public funds or property by reason of the
duties of his office.
To be liable for malversation, an accountable officer
need not be a bonded official.
The name or relative importance of the office or
employment is not the controlling factor. What is
decisive is the nature of the duties that he performs
and that as part of, and by reason of said duties, he
receives public money or property which he is bound
to account.
JURISPRUDENCE
Sarigumba v. Sandiganbayan (2005)
Malversation consists not only in misappropriation or

converting public funds or property to one's personal use but
also by knowingly allowing others to make use of or
misappropriate the same. The felony may thus be committed
by dolo or by culpa.
MWD v. Deputy Ombudsman (2000)
Demand merely raises a prima facie presumption that

missing funds have been put to personal use. The demand
itself, however, is not an element of, and not indispensable to
constitute, malversation.
JURISPRUDENCE
Torres v. People (31 August 2011)
Even when the Information charges willful malversation,

conviction for malversation through negligence may still be
adjudged if the evidence ultimately proves the mode of
commission of the offense. Explicitly stated, even on the
putative assumption that the evidence against petitioner yielded
a case of malversation by negligence, but the information was
for intentional malversation, under the circumstances of this
case, his conviction under the first mode of misappropriation
would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in
the offense is only a modality in the perpetration of the felony.
Even if the mode charged differs from mode proved, the same
offense of malversation is involved and conviction thereof is
proper.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: In 1982, the Philippine National Bank (PNB), then a

government banking institution, hired Henry dela Renta, a
CPA, as Regional Bank Auditor. In 1992, he resigned and
was employed by the Philippine Deposit Insurance
Corporation (PDIC), another government-owned and
controlled corporation. In 1995, after the PNB management
unearthed many irregularities and violations of the bank's
rules and regulations, dela Renta was found to have
manipulated certain accounts involving trust funds and
time deposits of depositors. After investigation, he was
charged with malversation of public funds before the
Sandiganbayan. He filed a motion to dismiss contending he
was no longer an employee of the PNB but of the PDIC. Is
dela Renta's contention tenable? (2006 Bar)
A: The contention of Henry dela Renta is not tenable.

Dela Renta may be prosecuted for malversation even
if he had ceased to be an employee of the PNB. At the
time of the commission of the offense, PNB was a
government owned and controlled corporation and
therefore, any crime committed by the Regional Bank
Auditor, who is a public officer, is subject to the
jurisdiction of the Sandiganbayan (See R.A. 7975 as
amended by RA. 8249).
Q: How is malversation distinguished from estafa?

(1999 Bar)
A: Malversation differs from estafa in that

malversation is committed by an accountable public
officer involving public funds or property under his
custody and accountability; while estafa is committed
by non- accountable public officer or private
individual involving funds or property for which he is
not accountable to the government.
In malversation of public funds, the offenders return

of the amount malversed has the following effect:
A. It is exculpatory.
B. It is inculpatory, an admission of the commission of the
crime.
C. The imposable penalty will depend on what was not
returned.
D. It is mitigating. (2011 Bar)
Q: City Engr. A, is the city engineer and the Chairman of the Bids and
Awards Committee (BAC) of the City of Kawawa. In 2009, the City of
Kawawa, through an ordinance, allotted the amount of P100 million for
the construction of a road leading to the poblacion. City Engr. A instead,
diverted the construction of the road leading to his farm. Investigation
further showed that he accepted money in the amount of P10 million
each from three (3) contending bidders, who eventually lost in the
bidding.
Audit report likewise showed that service vehicles valued at P2 million

could not be accounted for although reports showed that these were lent
to City Engr. As authorized drivers but the same were never returned.
Further, there were funds under City Engr. As custody amounting to P10
million which were found to be missing and could not be accounted for.
In another project, he was instrumental in awarding a contract for the
construction of a city school building costing P10 million to a close
relative, although the lowest bid was P8 million. Investigation also
revealed that City Engr. A has a net worth of more than P50 million,
which was way beyond his legitimate income. (2014 Bar)
A: I will separately charge City Engr. A of (a) plunder; (b)
violation of R.A. No. 3019; (c) technical malversation; and (d)
malversation.
City Engr. A can be charged with the crime of plunder

under R.A. No. 7080. Plunder is committed when a public
officer who, by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a
combination or series of overt criminal acts as described in
the Plunder Law in the aggregate amount of at least Fifty
million pesos (P50,000,000.00).
In this case, the following facts show the series or combination
of overt criminal acts punishable under the Plunder Law:
i. He took advantage of his official position to unjustly enrich
himself through the construction of a road, amounting to P100
million, leading to his farm. It could be shown that the
construction of the road can be considered as ill-gotten wealth
since it was for his benefit;
ii. He received kickbacks in the amount of P10 million each from
three (3) contending bidders, or a total amount of P30 million;
iii. The service vehicles, valued at P2 million, which he failed to
account or return is prima facie evidence that he has put the same
to personal use;
iv. Funds amounting to P10 million in his custody, which he failed to
account is prima facie evidence that he personally used the same;
and
v. He connived with a close relative as regards the award of a
contract costing P10 million although the lowest bid was P8
million.
City Engr. A may be charged with violation of R.A.
No. 3019. Under Section 3(e) of said law, it is unlawful for
any public officer to cause undue injury to any party,
including the Government, or to give any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross
inexcusable negligence. In this case, City Engr. A caused
undue injury to the Government and gave his close relative
unwarranted benefits in the discharge of his official
functions when he was instrumental in awarding a contract
for the construction of a city school building costing P10
Million to a close relative, although the lowest bid was P8
million.
City Engr. A may be charged with technical malversation under
Article 220, RPC. There is technical malversation when any public
officer applies any public fund or property under his administration to
any public use other than that for which such fund or property were
appropriated by law or ordinance. In this case, City Engr. A applies and
diverted the P100 million for the construction of a road leading to the
poblacion to another public use, which is the construction of the road
leading to his farm. Thus, City Engr. A is liable for technical
malversation.
City Engr. A may also be charged with malversation of public

property under Article 217 of the RPC as regards the service vehicles
which were lent to him and therefore under his custody, but which
could not be accounted for. In like manner, he may also be charged with
malversation of public funds under Article 217 of the RPC with respect
to the funds amounting to P10 million which were found to be missing.
City Engr. As failure to account said public property and public funds is
prima facie evidence that he has put the same to personal use.
16. EXTINGUISHMENT OF
CRIMINAL LIABILITY
Extinction of criminal liability : Art. 89
How criminal liability is totally extinguished. Criminal liability is
totally extinguished:
1. By the death of the convict, as to the personal penalties
and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender
occurs before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty
and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided
in Articles 344 and 266-C of the RPC.
Death of the convict
The death of the convict whether before or

after final judgment extinguishes criminal liability
(People v. Bayotas, G.R. No. 102007, 2 September
1994).
Civil liability is extinguished only when death

occurs before final judgment (People v. Bayotas).
Death of the convict
Death of the accused pending appeal of his conviction

extinguishes his criminal liability as well as the civil
liability based solely on the offense committed (People v.
Bayotas)
The claim for civil liability survives if the same
may also be predicated on a source of obligation
other than delict such as law, contracts, quasi-
contracts and quasi-delicts.
Death of the offended party does not extinguish the

criminal liability of the offender (People v. Bundalian, G.R.
No. L-29985, 23 October 1982).
Service of sentence
Crime is a debt incurred by the offender as a

consequence of his wrongful act and the penalty is but
the amount of his debt. When payment is made, the
debt is extinguished. Service of sentence does not
extinguish civil liability (Salgado v. Court of Appeals,
G.R. No. 89606, 30 August 1990).
Amnesty
The President shall have the power to grant

amnesty with the concurrence of a majority of all the
Members of the Congress (Constitution, Art. VII,
Sec.19).
Amnesty is an act of the sovereign power granting

oblivion or a general pardon for a past offense, and is
rarely, if ever, exercised in favor of a single individual,
and is usually exerted in behalf of certain classes of
persons, who are subject to trial but have not yet been
convicted.
Pardon by the chief executive
Except in cases of impeachment, or as otherwise

provided in the Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment (Constitution,
Art. VII, Sec. 19).
Any person who has been granted conditional pardon

shall incur the obligation of complying strictly with the
conditions imposed therein; otherwise, his non-
compliance with any of the conditions specified shall
result in the revocation of the pardon.
Pardon by the chief executive
Pardon Amnesty
Includes any crime Generally political offenses
Given after conviction Given before conviction or
institution of the action
Looks forward and forgives Looks backwards and
the punishment abolished the offense itself
Must be proved as a Being a result of a
defense proclamation, the court
may take judicial notice of
the same
Do not extinguish civil liability
Prescription of crimes (Art. 90)
PERIOD OF
CRIME OR PENALTY
PRESCRIPTION
Crimes punishable by Death,
Reclusion Perpetua or Reclusion 20 years
Temporal
Other afflictive penalties 15 years
Correctional penalties 10 years
Arresto mayor 5 years
Libel and similar offenses 1 year
Oral Defamation or Slander by
6 months
Deed
Light Offenses 2 months
Prescription of penalties (Art. 91)
PERIOD OF
PENALTY IMPOSED
PRESCRIPTION
Death and Reclusion
20 years
Perpetua
Other afflictive
15 years
penalties
Correctional penalties 10 years
Arresto mayor 5 years
Light Penalties 1 year
Marriage of the offended woman
Under Art. 344, in cases of seduction, abduction, and

acts of lasciviousness the marriage of the offended
party shall extinguish the criminal action.
Under Art. 266-C, the subsequent valid marriage
between the offender and the offended party shall
extinguish the criminal action or the penalty
imposed.
Art. 344: x x x The offenses of seduction, abduction, rape

or acts of lasciviousness, shall not be prosecuted except upon
a complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender has
been expressly pardoned by the above named persons, as the
case may be.
In cases of seduction, abduction, acts of lasciviousness and

rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty
already imposed upon him. The provisions of this paragraph
shall also be applicable to the co-principals, accomplices and
accessories after the fact of the above-mentioned crimes.
The rule that marriage of the offended party with the

offender extinguishes the criminal action and remits the
penalty already imposed, is not applicable where
multiple rape is committed, its benefit cannot be
extended to the other accused because each carnal access
amounts to a separate and independent crime of rape.
(People v. Bernardo, 38 OG 3479)
The pardon should have been made prior to the

institution of the criminal actions. (People v. Bonaagua,
G.R. No. 188897, 6 June 2011)
Partial extinction of criminal liability : Art. 94
Partial Extinction of criminal liability.
Criminal liability is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the
culprit may earn while he is undergoing
preventive imprisonment or serving his
sentence. (as amended by R.A. No. 10592)
Conditional pardon
It is considered a contract between the sovereign

power and the convict that the former will release the
latter upon compliance with the condition (Reyes, p.
868).
In case of violation of the conditions:

Offender will be rearrested and re-incarcerated
There shall be prosecution under Art. 159 of the
Revised Penal Code for evasion of service of sentence
(Art. 95).
Torres v. Gonzales (1987)
1. The grant of pardon and the determination of the terms

and conditions of a conditional pardon are purely
executive acts which are not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a
condition of a pardon, and the proper consequences of
such breach, may be either a purely executive act, not
subject to judicial scrutiny under Section 64 (i) of the
Revised Administrative Code; or it may be a judicial act
consisting of trial for and conviction of violation of a
conditional pardon under Article 159 of the Revised
Penal Code.
Torres v. Gonzales (1987)

xxx
Where the President opts to proceed under
Section 64 (i) of the Revised Administrative Code, no
judicial pronouncement of guilt of a subsequent
crime is necessary, much less conviction therefor by
final judgment of a court, in order that a convict may
be recommended for the violation of his conditional
pardon.
Partial extinction of criminal liability
Commutation of sentence
a. Reduction of degree of penalty
b. Decrease in the length of imprisonment
c. Reduction of the amount of fine
Art. 96. Effect of commutation of sentence. The

commutation of the original sentence for another of a
different length and nature shall have the legal effect of
substituting the latter in the place of the former.
Good conduct allowances during confinement (Art. 97, RPC
as amended by R.A. No. 10592)
Art. 97. Allowance for good conduct. The good conduct of any
offender qualified for credit for preventive imprisonment
pursuant to Article 29 of this Code, or of any convicted
prisoner in any penal institution, rehabilitation or detention
center or any other local jail shall entitle him to the following
deductions from the period of his sentence:
1. During the first two years of imprisonment, he shall be
allowed a deduction of twenty days for each month of
good behavior during detention;
2. During the third to the fifth year, inclusive, of his
imprisonment, he shall be allowed a reduction of twenty-
three days for each month of good behavior during
detention;
Good conduct allowances during confinement (Art. 97, RPC as
amended by R.A. No. 10592)
xxx
3. During the following years until the tenth year, inclusive, of
his imprisonment, he shall be allowed a deduction of twenty-
five days for each month of good behavior during detention;
4. During the eleventh and successive years of his imprisonment,
he shall be allowed a deduction of thirty days for each month
of good behavior during detention; and
5. At any time during the period of imprisonment, he shall be
allowed another deduction of fifteen days, in addition to
numbers one to four hereof, for each month of study,
teaching or mentoring service time rendered.
An appeal by the accused shall not deprive him of entitlement
to the above allowances for good conduct.
Good conduct allowances during confinement (Art. 98, as
amended by R.A. No. 10592
Art. 98. Special time allowance for loyalty. A deduction of one

fifth of the period of his sentence shall be granted to any
prisoner who, having evaded his preventive imprisonment or
the service of his sentence under the circumstances mentioned in
Article 158 of this Code, gives himself up to the authorities
within 48 hours following the issuance of a proclamation
announcing the passing away of the calamity or catastrophe
referred to in said article. A deduction of two-fifths of the
period of his sentence shall be granted in case said prisoner
chose to stay in the place of his confinement notwithstanding
the existence of a calamity or catastrophe enumerated in
Article 158 of this Code.
This Article shall apply to any prisoner whether
undergoing preventive imprisonment or serving sentence.
Parole
This may be granted to a prisoner after

serving the minimum penalty under the
Indeterminate Sentence Law.
This is a suspension of the sentence of a

convict after serving the minimum term of the
indeterminate penalty, without granting a
pardon prescribing the terms upon which the
sentence shall be punished (Reyes, p. 869).
Parole
Art. 95. Obligation incurred by person granted

conditional pardon. Any person who has been
granted conditional pardon shall incur the
obligation of complying strictly with the
conditions imposed therein otherwise, his non-
compliance with any of the conditions specified
shall result in the revocation of the pardon and
the provisions of Article 159 (Other cases of evasion
of service of sentence) shall be applied to him.
Parole
CONDITIONAL PARDON PAROLE
May be given any time May be given after the
before final judgment prisoner has served the
minimum penalty
granted by the Chief granted by the Board of
Executive Parole and Pardons under
the Indeterminate Sentence
Law
For violation, convict may be For violation, convict can be

rearrested or prosecuted rearrested and re-
under Art. 159 incarcerated to serve the
unexpired portion of his
original penalty
PROBATION
Probation : disposition under which a defendant, after conviction
and sentence, is RELEASED subject to conditions imposed by the
court and to the supervision of a probation officer. (Sec. 3(a))
- SUSPENDED SENTENCE
After conviction and sentencing, a qualified defendant may APPLY

FOR PROBATION within the period for perfecting an appeal. (Sec.
4)
APPEAL INCONSISTENT WITH PROBATION
APPLYING FOR PROBATION = WAIVER OF RIGHT TO
APPEAL
See R.A. No. 9344 as regards probation of children in conflict
with the law.
PROBATION
When granted:
Sentence imposes imprisonment or fine (Sec. 4)
Not available in case of Destierro
Order granting/denying probation

Not appealable (Sec. 4)
Guidelines: deny probation when (Sec. 8)

Offender needs correctional treatment;
Undue risk he will commit another crime;
Probation will depreciate the seriousness of the offense
PROBATION
Disqualified offenders (Sec. 9)
Sentenced to a maximum term more than 6 yrs.;
Crime committed against national security or public
order;
Previously convicted by final judgment of an offense
punished by imprisonment of not less than 1 mth 1 day
and/or fine not less than P 200;
Previously granted probation;
Effectivity of probation order (Sec. 11)

Upon the time of its issuance
PROBATION
Mandatory conditions (Sec. 10)
Offender must present self to designated probation
officer within 72 hrs. from receipt of Probation Order;
Report to the Probation Officer at least once a month at
the designated time and place;
Optional conditions (Sec. 10):

Any condition relative to rehabilitation (e.g. find
employment, meet family responsibilities, etc.)
PROBATION
Effect of violating mandatory conditions (Sec. 15)

Court may issue Arrest Warrant;
Summary hearing conducted;
If serious violation proven, Probation will be revoked
and the accused ordered to serve the original
sentence.
Final discharge (Sec. 16)

After period of probation and upon recommendation
of the Probation officer, Court may order a Discharge.
Discharge fully discharges accused from crim.
liability.
JURISPRUDENCE
Pablo v. Castillo (2000)
For purposes of probation, the term previous

conviction in Sec. 9(c) of P.D. 869 refers to a conviction
of any offense.
The law does not qualify. Hence, previous conviction
may cover a conviction for a crime that is entirely
different from that for which the offender is applying
for probation or a crime which arose out of a single act
or transaction as petitioner would have the court to
understand.
JURISPRUDENCE
Lagrosa v. People (2003)
General rule: a person who appeals his conviction can no

longer apply for probation.
Exception: A person who appeals his conviction for

sole purpose of reducing the penalty to that which is
within the probationable limit may still apply for
probation.
Thus, determine what is being appealed: FINDING OF

GUILT or MERE CORRECTNESS OF THE PENALTY
IMPOSED? (Tolentino vs. CA)
JURISPRUDENCE
Bala v. Martinez (1990)
The expiration of the probation period alone does not

automatically terminate probation. Nowhere is the ipso
facto termination of probation found in the provisions
of the probation law. Probation is not coterminous
with its period. There must first be issued by the court
of an order of final discharge based on the report and
recommendation of the probation officer. Only from
such issuance can the case of the probationer be
deemed terminated.
JURISPRUDENCE
Colinares v. People (2011)
Facts: Accused was convicted of frustrated homicide by the RTC, thus

was not eligible for probation. On appeal before the Supreme Court,
the RTCs judgment was set aside and a conviction for attempted
homicide was meted upon him. May he still apply for probation?
Held: Yes. Here, however, accused did not appeal from a judgment that
would have allowed him to apply for probation. He did not have a
choice between appeal and probation. He was not in a position to say,
By taking this appeal, I choose not to apply for probation. The stiff
penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow the accused to now seek
probation under this Courts greatly diminished penalty will not dilute
the sound ruling in Francisco. It remains that those who will appeal
from judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
JURISPRUDENCE
Salgado v. Court of Appeals (1990)
Although the execution of sentence is suspended by

the grant of probation, it does not follow that the civil
liability of the offender, if any, is extinguished. This
can be inferred from a reading of the text of the
Apalisok case where the issue that was involved
therein was whether a grant of probation carries with
it the extinction of the civil liability of the offender.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: AX was convicted of reckless imprudence resulting

in homicide. The trial court sentenced him to a prison
term as well as to pay P150,000 as civil indemnity and
damages. While his appeal was pending, AX met a
fatal accident. He left a young widow, 2 children, and a
million-peso estate. What is the effect, if any, of his
death on his criminal as well as civil liability? Explain
briefly. (2004 Bar)
A: The death of AX while his appeal from the judgment of
the trial court is pending, extinguishes his criminal
liability. The civil liability insofar as it arises from the
crime and recoverable under the Revised Penal Code is
also extinguished; but indemnity and damages may be
recovered in a civil action if predicated on a source of
obligation under Art. 1157, Civil Code, such as law,
contracts, quasi-contracts and quasi-delicts, but not on
the basis of delicts. (People v. Bayotas, 236 SCRA 239 ).
Civil indemnity and damages under the Revised Penal

Code are recoverable only if the accused had been
convicted with finality before he died.
17. PARRICIDE
PARRICIDE : ART. 246
Parricide. Any person who shall kill his father,

mother, or child, whether legitimate or illegitimate,
or any of his ascendants, or descendants, or his
spouse, shall be guilty of parricide and shall be
punished by the penalty of reclusin perpetua to
death. (Restored by Section 5, Republic Act No.
7659.)
Elements:
1. A person is killed;
2. The deceased is killed by the accused;
3. The deceased is the father, mother, or child,
whether legitimate or illegitimate; or a legitimate
other ascendant or other descendant, or the
legitimate spouse, of the accused.
Relationship of the offender with the victim is an

essential element of this crime.
GENERAL RULE: only relatives by blood and in

the direct line are considered in parricide.
EXCEPTION: spouse
The father, mother or child may be legitimate or

illegitimate. However, the other ascendants or
descendants must be legitimate.
The spouse must be legitimate.
The best proof of marriage is the marriage

certificate.
The best proof of filiation is the birth
certificate of the child or any other evidence
accepted for proving filiation.
Relationship must be alleged in order that the

accused may be convicted of parricide.
JURISPRUDENCE
People v. Ayuman (2004)

The key element in the offense of parricide is the
relationship between the offender and his victim.
People v. Tomotorgo (1985)
The fact that the accused intended to maltreat the

victim or inflict physical injuries DOES NOT exempt
him from liability for the resulting and more serious
crime committed. He is only entitled to the mitigating
circumstance of lack of intent to commit so grave a
wrong.
JURISPRUDENCE
People v. Jumawan (1982)
Presentacion Jumawan, her father and two brothers

conspired to kill Presentacions husband Rodolfo in a store
near the public market. The fiscal filed an information for
murder against the four accused and they were
subsequently convicted for such crime. Since
Presentacions relationship to the victim is not alleged in
the information, she can be convicted of murder only.
Relationship can be appreciated as generic aggravating
circumstance only. (Note however that the change in the
Rules mandate that aggravating circumstances must be
alleged in the information in order to be appreciated in
imposing the criminal liability.)
JURISPRUDENCE
People v. Ignacio (1997)
The phrase whether legitimate or illegitimate in the law

just refers to children and not to spouses who must
therefore be legitimate.
There is a presumption in law that persons deporting

themselves as husband and wife have entered into a
lawful marriage without proof to the contrary.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: The conduct of wife A aroused the ire of her

husband B. Incensed with anger almost beyond his
control, B could not help but inflict physical injuries
on A. Moments after B started hitting A with his fists,
A suddenly complained of severe chest pains. B,
realizing that A was indeed in serious trouble,
immediately brought her to the hospital. Despite
efforts to alleviate A's pains, she died of heart attack. It
turned out that she had been suffering from a
lingering heart ailment. What crime, if any, could B be
held guilty of? (2003 Bar)
A: B could be held liable for parricide because his act of hitting
his wife with fist blows and therewith inflicting physical injuries
on her, is felonious. A person committing a felonious act incurs
criminal liability although the wrongful consequence is different
from what he intended (Art. 4, par. 1, Revised Penal Code).
Although A died of heart attack, the said attack was generated

by B's felonious act of hitting her with his fists. Such felonious
act was the immediate cause of the heart attack, having
materially contributed to and hastened A's death. Even though B
may have acted without intent to kill his wife, lack of such intent
is of no moment when the victim dies. However, B may be given
the mitigating circumstance of having acted without intention to
commit so grave a wrong as that committed (Art. 13, par. 3,
Revised Penal Code).
18. IMPOSSIBLE CRIMES
IMPOSSIBLE CRIME : Art. 4 par. 2
Criminal liability shall be incurred by any

person performing an act which would be an
offense against persons or property, were it not for
the inherent impossibility of its accomplishment
or an account of the employment of inadequate or
ineffectual means.
Requisites:
1. That the act performed would be an offense
against persons or property.
Felonies against persons: Parricide, Murder,

Homicide, Infanticide, Abortion, Duel, Physical
Injuries, Rape
Felonies against property: Robbery, Brigandage,

Theft, Usurpation, Culpable Insolvency,
Swindling and other deceits, Chattel Mortgage,
Arson and other crimes involving destruction,
Malicious Mischief
Requisites:
2. That the act was done with evil intent.

The offender must have intent to do injury to
another.
3. That its accomplishment is inherently impossible, or

that the means employed is either inadequate or
ineffectual.
That its accomplishment is inherently impossible, or that the
means employed is either inadequate or ineffectual.
a. the commission of the offense is inherently impossible of

accomplishment
The act intended by the offender is by its nature one of
impossible accomplishment.
There must either 1) LEGAL IMPOSSIBILITY, or 2)
PHYSICAL IMPOSSIBILITY
Examples:
i. when one tries to kill another by putting in his drink
a substance which he believes to be arsenic when in
fact it is common salt;
ii. when one tries to murder a corpse.
Legal impossibility occurs where the intended acts, even if completed,

would not amount to a crime. Legal impossibility would apply to those
circumstances where (1) the motive, desire and expectation is to
perform an act in violation of the law; (2) there is intention to perform
the physical act; (3) there is a performance of the intended physical act;
and (4) the consequence resulting from the intended act does not
amount to a crime. The impossibility of killing a person already dead
falls in this category.
On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. One example is the man who
puts his hand in the coat pocket of another with the intention to steal
the latter's wallet and finds the pocket empty. (Intod v. Court of Appeals,
21 October 1992)
That its accomplishment is inherently impossible, or that
the means employed is either inadequate or ineffectual.
b. the means employed is either inadequate or

ineffectual
Example: when one tries to poison another but the

quantity of arsenic added in his substance was not
sufficient to kill a person.
However: where the means employed is adequate and

the result expected is not produced, it is not an
impossible crime, but a frustrated felony.
ATTEMPTED OR IMPOSSIBLE CRIME
FRUSTRATED
The evil intent of the offender is not accomplished
The evil intent of the The evil intent of the
offender is possible of offender cannot be
accomplishment accomplished
The evil intent cannot be The evil intent of the
accomplished because of the offender cannot be
intervention of certain cause accomplished because it is
or accident in which the inherently impossible of
offender had no part accomplishment or
because the means
employed by the offender
is inadequate or ineffectual
Intod v. CA (G.R. No. 103119, 21 October 1992)
Facts: Intod et al. went to Palangpangans house, all armed

with firearms. They went to the bedroom and began firing
their weapons. However, Palangpangan was in another city
and her home was occupied by her son-in-law and his
family. No one was in the room when the accused fired their
weapons. RTC convicted the accused of attempted murder.
Held: The accused is guilty of an impossible crime. The

factual situation in the case presents a physical impossibility
which rendered the intended crime impossible of
performance.
Why is an impossible crime punishable?
It is punishable in order to suppress criminal

tendencies. Objectively, the offender has not
committed a felony, but subjectively, he is a criminal
(Reyes, p. 85).
Penalty to be imposed in case of failure to commit the crime
because the means employed or the aims sought are impossible
When the person intending to commit an offense has

already performed the acts for the execution of the same but
nevertheless the crime was not produced by reason of the
fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such
person are essentially inadequate to produce the result
desired by him, the court, having in mind the social danger
and the degree of criminality shown by the offender, shall
impose upon him the penalty of arresto mayor or a fine from
200 to 500 pesos (Article 59).
19. STAGES OF COMMISSION
OF A CRIME
STAGES OF EXECUTION : Art. 6
Article 6, RPC:
x x x A felony is consummated when all the elements
necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than this
own spontaneous desistance.
OVERT ACT some physical activity or deed, indicating the

intention to commit a particular crime, more than a mere
planning or preparation, which if carried to its complete
termination following its natural curse, without being
frustrated by external obstacles nor by voluntary desistance of
the perpetrator, will logically and necessarily ripen into a
concrete offense (Reyes, p. 94).
INDETERMINATE OFFENSE It is one where the purpose

of the offender in performing an act is not certain. Its nature in
relation to its objective is ambiguous (Reyes, p. 97).
SUBJECTIVE PHASE
The subjective phase is that portion of the acts constituting
the crime included between the act which begins the
commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the
consummated crime.
OBJECTIVE PHASE
Period after the performance of all the acts which would
produce the crime
the result of the acts of execution, that is, the
accomplishment of the crime.
If the subjective and objective phases are present, there is
consummated felony. (U.S. v. Eduave, 2 February 1917)
ATTEMPTED FELONY
Elements:
1. The offender commences the commission of the
felony directly by overt acts;
2. He does not perform all the acts of execution which
should produce the felony;
3. The offenders act is not stopped by his own
spontaneous desistance; and
4. The non-performance of all acts of execution was
due to cause or accident other than his own
spontaneous desistance.
FRUSTRATED FELONY
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as
a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the
perpetrator.
In frustrated felony, the offender must perform all the

acts of execution. Nothing more is left to be done by the
offender, because he has performed the last act
necessary to produce the crime.
FRUSTRATED FELONY v. ATTEMPTED FELONY
1. In frustrated felony, the offender has performed all the acts

of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender
merely commences the commission of a felony directly by
overt acts and does not perform all the acts of execution.
2. In frustrated felony, the reason for the non-

accomplishment of the crime is some cause independent of
the will of the perpetrator; on the other hand, in attempted
felony, the reason for the non-fulfillment of the crime is a
cause or accident other than the offenders own
spontaneous desistance. (Cervantes v. People, 5 July 2010)
CONSUMMATED FELONY
Elements:
1. All the acts of execution are present; and
2. The result is achieved.
Every crime has its own elements which must all be

present to constitute a culpable violation of a precept of
law.
DETERMINING WHETHER THE FELONY IS ATTEMPTED,
FRUSTRATED OR CONSUMMATED
1. the nature of the offense

Example: In arson, it is not necessary that the property is
totally destroyed by fire. The crime of arson is therefore
consummated even if only a portion of the wall or any other part
of the house is burned.
2. the elements constituting the felony

Example: In theft, the mere removal of the personal property
belonging to another with intent to gain is sufficient to
consummate the offense.
In estafa, the offended party must actually be prejudiced or

damaged.
3. the manner of committing the crime
i. formal crimes those which are consummated by a

single act (ex. Slander, adultery)
N.B. There can be no ATTEMPT in a formal crime.
ii. crimes consummated by mere attempt

(ex. Attempt to flee to an enemy country, treason, crimes
enumerated under Section 26, R.A. No. 9165)
N.B. There is no ATTEMPTED crime because the
overt act in itself consummates the crime.
iii. felonies by omission

There can be no attempted stage because the offender does not
execute acts. He omits to perform an act which the law requires
him to do.
iv. crimes committed by mere agreement

The offer made by one of the parties to the other constitutes
attempted felony, if the offer is rejected.
v. material crimes
There are three stages of consummation: attempted, frustrated
and consummated.
JURISPRUDENCE
People v. Aca-ac (2001)
Rape is either attempted or consummated. There

can be no frustrated rape.
People v. Campuhan (2000)
Rape is consummated by the slightest

penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis
JURISPRUDENCE
Valenzuela v. People (2007)
There is no crime of frustrated theft. Theft is already
produced upon the taking of personal property of
another without the latters consent. There was no need
for permanency in the taking or in its intent, as the mere
temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted
apoderamiento
People v. Valledor (2002)

The settled rule is that where the wound inflicted on the
victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the
acts of execution that would have brought about death
JURISPRUDENCE
People v. Barra (2013)
Accused is guilty of attempted robbery with homicide only
when he commenced the commission of robbery directly by
overt acts and did not perform all the acts of execution
which would produce robbery by reason of some causes or
accident other than his own spontaneous desistance
People v. Labiaga (2013)
If the evidence failed to convince the court that the wound

sustained would have caused the victims death without
timely medical attention, accused should be convicted of
attempted murder and not frustrated murder.
JURISPRUDENCE
People v. Lamahang (1935)
Thus, in case of robbery, in order that the simple act of entering

by means of force or violence another person's dwelling may be
considered an attempt to commit this offense, it must be shown that the
offender clearly intended to take possession, for the purpose of gain, of
some personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store, it may
only be inferred as a logical conclusion that his evident intention was to
enter by means of force said store against the will of its owner. That his
final objective, once he succeeded in entering the store, was to rob, to
cause physical injury to the inmates, or to commit any other offense,
there is nothing in the record to justify a concrete finding.
JURISPRUDENCE
Epifanio v. People (2007)
In homicide cases, the offender is said to have

performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the
death of the victim barring medical intervention or
attendance. If one inflicts physical injuries on another
but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no
intention to kill the victim; or frustrated or attempted
homicide or frustrated murder or attempted murder if
the offender intends to kill the victim.
JURISPRUDENCE
United States v. Valdes (1918)
The fact of setting fire to a jute sack and a rag, soaked with
kerosene oil and placed beside an upright of the house and a
partition of the entresol of the building, thus endangering the
burning of the latter, constitutes the crime of frustrated arson of an
inhabited house, on an occasion when some of its inmates were
inside of it. The crime is classified only as frustrated arson, inasmuch
as the defendant performed all the acts conceive to the burning of
said house, but nevertheless, owing to causes independent of his will,
the criminal act which he intended was not produced. The offense
committed cannot be classified as consummated arson by the burning
of said inhabited house, for the reason that no part of the building
had yet commenced to burn, although, as the piece of sack and the
rag, soaked in kerosene oil, had been placed near partition of the
entresol, the partition might have started to burn, had the fire not
been put out on time.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: In an attempted felony, the offenders

preparatory act
A. itself constitutes an offense.

B. must seem connected to the intended crime.
C. must not be connected to the intended crime.
D. requires another act to result in a felony.
(2011 Bar)
Q: A public officer who immediately returns the

bribe money handed over to him commits
A. no crime.
B. attempted bribery.
C. consummated bribery.
D. frustrated bribery. (2011 Bar)
20. QUALIFIED THEFT
QUALIFIED THEFT : Art. 360
Theft is qualified if:
1. Committed by a domestic servant;

2. Committed with grave abuse of confidence;
3. The property stolen is a motor vehicle, mail matter, or large
cattle;
4. The property stolen consists of coconuts taken from the
premises of a plantation;
5. The property stolen is fish taken from a fishpond or fishery;
or
6. If property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
accident, or civil disturbance.
Penalties for qualified theft are now next HIGHER BY 2

DEGREES.
Theft by domestic servant is always qualified. it is not
necessary to prove grave abuse of confidence.
The abuse of confidence must be grave.
There must be allegation in the information and proof of
a relation, by reason of dependence, guardianship or
vigilance, between the accused and the offended party,
that has created a high degree of confidence between
them, which the accused abused.
Anti-Carnapping Act of 1972 (R.A. No. 6539)

Anti-Cattle Rustling Law of 1974 (P.D. No. 533)
Heavier Penalties for Thefts by Employees and Laborers
(P.D. No. 133)
Anti-Electricity Pilferage Act (R.A. No. 7832)
N.B.: Some LGUs have Anti-Cable Television Theft
Ordinances.
Theft of Forestry Products (P.D. No. 330)
Theft of Minerals/Ores (P.D. No. 581)
JURISPRUDENCE
Roque v. People (2004)
If the bank teller appropriates the money for personal

gain then the felony committed is theft and not estafa.
Further, since the teller occupies a position of

confidence, and the bank places money in the teller's
possession due to the confidence reposed on the
teller, the felony of qualified theft would be
committed.
JURISPRUDENCE
Astudillo v. People (2006)
Mere circumstance that petitioners were employees of

Western does not suffice to create the relation of
confidence and intimacy that the law requires.
The element of grave abuse of confidence requires

that there be a relation of dependence, guardianship or
vigilance between the petitioners and Western.
JURISPRUDENCE
People v. Bustinera (2004)

The joyride case
Carnapping is essentially the robbery or theft of a

motorized vehicle, the concept of unlawful taking
in theft, robbery and carnapping being the same.
From the foregoing, since appellant is being

accused of the unlawful taking of a Daewoo sedan,
it is the anti-carnapping law and not the provisions
of qualified theft which would apply.
JURISPRUDENCE
Viray v. People (2013)
To warrant the conviction and, hence, imposition of the

penalty for qualified theft, there must be an allegation in the
information and proof that there existed between the offended
party and the accused such high degree of confidence or that
the stolen goods have been entrusted to the custody or
vigilance of the accused. In other words, where the accused
had never been vested physical access to, or material
possession of, the stolen goods, it may not be said that he or
she exploited such access or material possession thereby
committing such grave abuse of confidence in taking the
property.
JURISPRUDENCE
People v. Tanchanco (2012)
Under Article 310 of the RPC, 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.
The position of a legal secretary and liaison officer
necessarily entails such trust and confidence by virtue of
its nature and because the accused makes
representations on behalf of the victim.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: A fire broke out in a department store, A, taking

advantage of the confusion, entered the store and
carried away goods which he later sold. What crime, if
any, did he commit? Why? (2002 Bar)
A: A committed the crime of qualified theft because he

took the goods on the occasion of and taking
advantage of the fire which broke out in the
department store. The occasion of a calamity such as
fire, when the theft was committed, qualifies the
crime under Article 310 of the Revised Penal Code,
as amended.
Qualified theft. The crime of theft shall be punished by
the penalties next higher by two degrees than those
respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from
the premises of a plantation, or fish taken from a fishpond
or fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance.(As
amended by R.A. 120 and B.P. Blg. 71. May 1, 1980).
21. RAPE
RAPE : Art. 266-A
Rape is committed
1. By a man who shall have carnal knowledge of a

woman under any of the following circumstances:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or
otherwise unconscious;
c. By means of fraudulent machination or grave
abuse of authority; and
d. When the offended party is under twelve (12) years
of age or is demented, even though none of the
circumstances mentioned above be present.
RAPE : Art. 266-A
2. By any person who, under any of the

circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by
inserting his penis into another person's mouth
or anal orifice, or any instrument or object, into
the genital or anal orifice of another person. (As
added by Republic Act No. 8353, approved 30
September 1997.)
RAPE : Art. 266-A
When and how rape is committed
Elements under paragraph 1:

1. Offender is a man;
2. Offender had carnal knowledge of a woman; and
3. Such act is accomplished under any of the following
circumstances:
a. By using force or intimidation;
b. When the woman is deprived of reason or
otherwise unconscious;
c. By means of fraudulent machination or grave
abuse of authority; or
d. When the woman is under 12 years of age or
demented.
RAPE : Art. 266-A
1. Offender commits an act of sexual assault;
2. The act of sexual assault is committed by any of the following
means:
a. By inserting his penis into another person's mouth or anal
orifice, or
b. By inserting any instrument or object into the genital or
anal orifice of another person; and
3. The act of sexual assault is accomplished under any of the
following circumstances:
a. By using force or intimidation; or
b. when the woman is deprived of reason or otherwise
unconscious; or
c. By means of fraudulent machination or grave abuse of
authority; or
d. When the woman is under 12 years of age or demented.
RAPE : Art. 266-A
Force employed against the victim of the rape need
not be of such character as could be resisted. It is
enough that the force used is sufficient to
consummate the purpose of copulating with the
offended woman.
When the offender in rape has an ascendancy or

influence over the girl, it is not necessary that she put
up a determined resistance.
There is no crime of frustrated rape (see Orita case).
Character of the offended woman is immaterial in

rape.
RAPE : Art. 266-C
Art. 266-C. Effect of pardon
Subsequent valid marriage between the offender and the

offended party shall extinguish the criminal action or the
penalty imposed.
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 or the penalty,
provided that their marriage is not void ab initio.
RAPE : Art. 266-D
266-D. Presumptions
Evidence which may be accepted in the prosecution

of rape:
any physical overt act manifesting resistance

against the act of rape in any degree from the
offended party.
where the offended party is so situated as to
render him/her incapable of giving consent.
JURISPRUDENCE
People vs. Oga (2004)
In reviewing rape cases, the Court has established the

following principles as guides:
1. an accusation of rape can be made with facility,

difficult to prove but more difficult for the person
accused, though innocent, to disprove;
2. by reason of the intrinsic nature of rape, the
testimony of the complainant must be scrutinized
with extreme caution; and
3. the evidence for the prosecution must stand or fall on
its merits and cannot draw strength from the
weakness of the evidence for the defense.
JURISPRUDENCE
People v. Jalosjos (2001)
In statutory rape, mere sexual congress with a woman
below twelve years of age consummates the crime of
statutory rape regardless of her consent to the act or lack of it.
The law presumes that a woman of tender age does

not possess discernment and is incapable of giving intelligent
consent to the sexual act.
People vs. Plurad (2002)

In cases of multiple rape, each of the defendants is
responsible not only for the rape committed by him but also
for those committed by the others.
JURISPRUDENCE
People v. Dela Torre (2004)
An accused may be considered a principal by direct
participation, by inducement, or by indispensable cooperation.
This is true in a charge of rape against a woman, provided of
course a man is charged together with her.
In two cases, the Court convicted the woman as a principal by

direct participation since it was proven that she held down the
complainant in order to help her co-accused spouse consummate
the offense.
People v. Soriano(2002)
Inserting a finger inside the genital of a woman is rape
through sexual assault within the context of paragraph 2 of Article
266-A of the RPC
A finger is considered an object (People v. Fetalino, 2007).

JURISPRUDENCE
People v. Arnaiz (2006)
The delay in reporting the rape incident does not weaken
the case for the prosecution. It is not uncommon for a young
girl to conceal assaults on her virtue, especially when the
rapist is living with her.
People v. Teodoro (2006)

The medical examination of the victim is merely
corroborative in character and is not an element of
rape. Likewise, a freshly broken hymen is not an essential
element of rape and healed lacerations do not negate rape.
People v. Lining (2002)

Forcible abduction is deemed absorbed in the rape
committed.
JURISPRUDENCE
People v. Bautista (2004)
A romantic relationship does not necessarily establish

consent. It has been consistently ruled that "a love affair does
not justify rape, for the beloved cannot be sexually violated
against her will."
The fact that a woman voluntarily goes out on a date

with her lover does not give him unbridled license to have
sex with her against her will.
Definitely, a man cannot demand sexual gratification

from a fiancee and, worse, employ violence upon her on the
pretext of love. Love is not a license for lust."
JURISPRUDENCE
People v. Evangelio (2011)
To be convicted of robbery with rape, the

following elements must concur: (1) the taking of
personal property is committed with violence or
intimidation against persons; (2) the property taken
belongs to another; (3) the taking is characterized by
intent to gain or animus lucrandi; and (4) the robbery is
accompanied by rape.
JURISPRUDENCE
People v. Pangilinan (2011)
Doctrine: Rape vs. violation of Child Abuse Law (R.A. No.

7610):
If the victim is 12 years or older, the offender should be

charged with either sexual abuse under Section 5 (b) of
R.A. No. 7610 or rape under Article 266-A (except
paragraph 1 [d] of the Revised Penal Code.
However, the offender cannot be accused of both

crimes for the same act because his right against double
jeopardy will be prejudiced. A person cannot be subjected
twice to criminal liability for a single criminal act.
JURISPRUDENCE
Alberto v. Court of Appeals (2013)
The DOJ charged Gil for Rape in relation to Child

Abuse under Section 5(b), Article III of RA 7610. Existing
jurisprudence, however, proscribes charging an accused for
both crimes, rather, he may be charged only for either.
Citing People v. Pangilinan, the court noted that if the

victim is 12 years or older, the offender should be charged
with either sexual abuse under Section 5(b) of RA 7610 or
rape under Article 266-A (except paragraph 1[d]) of the
Revised Penal Code. The offender cannot be accused of both
crimes for the same act because his right against double
jeopardy will be prejudiced. A person cannot be subjected
twice to criminal liability for a single criminal act.
JURISPRUDENCE
Alberto v. Court of Appeals (2013)
Likewise, rape cannot be complexed with a violation

of Section 5(b) of R.A. No. 7610. Under Section 48 of
the Revised Penal Code (on complex crimes), a felony
under the Revised Penal Code (such as rape) cannot
be complexed with an offense penalized by a special
law.
JURISPRUDENCE
People v. Vergana, 15 January 2014
The accused is guilty of statutory rape with the

prosecution having established that he had carnal
knowledge of the victim when she was just 9 years old as
evidenced by her Certificate of Live Birth.
People v. Jastiva, 12 February 2014
The law does not impose a burden on the rape victim to

prove resistance. What needs only to be proved by the
prosecutor is the use of force or intimidation in having
sexual intercourse with the victim.
JURISPRUDENCE
People v. Ventura (2014)
Where the victim is mentally deficient, she

should properly be classified as one who is deprived
of reason, not one who is demented; and carnal
knowledge with her is rape under Article 266(b) and
not (d), such that since accused failed to raise
objections to the erroneous allegation in the
information, such defect will not exonerate him.
Republic Act No. 8505
R.A. No. 8505
a. Establishment of RAPE CRISIS CENTER (Sec. 3)
Located in government hospitals or health clinics;
Provide victims with counselling and therapy;
Assist them in securing legal representation;
Protect their privacy and safety, etc.
b. Establishment of PNP WOMENS DESK

(Sec. 4):
Medico-legal examination should be conducted
by a physician of the same gender as the
offended party;
Female police officers/prosecutors preferred in
handling rape investigations.
R.A. No. 8505
c. Protective Measures (Sec. 5):

Closed-door investigations/hearings;
Victims identity and personal circumstances
should not be disclosed to the public.
d. Rape Shield (Sec. 6):

No evidence pertaining to the victims past
sexual conduct shall be introduced, unless the
same is relevant and material to the case.
JURISPRUDENCE
People v. Agsaoay (2004)
In rape cases, the victims moral character is
immaterial since there is no nexus between it and the
offense committed.
People v. Cabalquinto (2006)

Pursuant to R.A. No. 9262 and its implementing rules,
the real name and personal circumstances of the victim,
together with the real names of her immediate family
members, should be withheld to protect her privacy.
Fictitious initials instead are used to represent her

and other family members concerned.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: King went to the house of Laura who was alone. Laura offered
him a drink and after consuming three bottles of beer. King made
advances to her and with force and violence, ravished her. Then
King killed Laura and took her jewelry.
Doming, King's adopted brother, learned about the incident. He

went to Laura's house, hid her body, cleaned everything and washed
the bloodstains inside the room.
Later, King gave Jose, his legitimate brother, one piece of jewelry
belonging to Laura. Jose knew that the jewelry was taken from
Laura but nonetheless he sold it for P2,000. What crime or crimes
did King, Doming and Jose commit? Discuss their criminal
liabilities. (1998 Bar)
A: King committed the (a) special complex crime of Rape with
homicide under Art. 266-B; and (b) Theft. The taking of Laura's
jewelry when she is already dead is only theft.
Doming, who would have been considered an accessory to Kings

crimes under Art. 19(2), may avail of the exemption provided for in
Art. 20 since (a) he is Kings adopted brother, and (b) by cleaning
the crime scene and disposing of one of pieces of jewelry stolen are
not, he did not profit himself by the effects of the crime.
King, who knew that the piece of jewelry was stolen from Laura,
but nevertheless took and sold the same, will be liable for violation
of the Anti-Fencing Law defined and penalized under P.D. No.
1612. Even assuming that he is charged as an accessory to Kings
crime, he cannot avail of the exemption under Art. 20 (despite
being Kings brother) since he profited from the effects of a crime.
22. PRIVILEGED MITIGATING
CIRCUMSTANCES
PRIVILEGED MITIGATING
CIRCUMSTANCES :
Art. 68, RPC and R.A. No. 9344
ART. 68. Penalty to be imposed upon a person under

eighteen years of age. - xxx
(Note: This has been amended by R.A. 9344. Please see

discussion which follows)
People v. Mantalaba (2011)
Consequently, the privileged mitigating circumstance of minority can
now be appreciated in fixing the penalty that should be imposed. The
RTC, as affirmed by the CA, imposed the penalty of reclusion perpetua
without considering the minority of the appellant. Thus, the proper
penalty should be one degree lower than reclusion perpetua, which is
reclusion temporal, the privileged mitigating circumstance of minority
having been appreciated. Necessarily, also applying the Indeterminate
Sentence Law (ISLAW), the minimum penalty should be taken from the
penalty next lower in degree which is prision mayor and the maximum
penalty shall be taken from the medium period of reclusion temporal,
there being no other mitigating circumstance or aggravating
circumstance. The ISLAW is applicable in the present case because the
penalty which has been originally an indivisible penalty (reclusion
perpetua to death), where ISLAW is inapplicable, became a divisible
penalty (reclusion temporal) by virtue of the presence of the privileged
mitigating circumstance of minority. Therefore, a penalty of six (6) years
and one (1) day of prision mayor, as minimum, and fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal, as maximum,
would be the proper imposable penalty.
JUVENILE JUSTICE AND
WELFARE ACT OF 2006
(Republic Act No. 9344, as amended by
Republic Act No. 10630)
R.A. No. 9344
New rules on criminal liability (Sec. 6):

AGE CRIMINALLY LIABLE?
15 years old and below No (Intervention)
Over 15 years old but
under 18 years old:
Without discernment No (Intervention)
With discernment Yes (Diversion)
R.A. No. 9344
On Presumption of Minority (Sec. 7)
Children in conflict with the law are presumed minors.
Any person who challenges this presumption must file a
separate, summary action for determination of age with the
Family Court before the filing of the Information.
On Suspension of Sentence (Sec. 5)

AUTOMATIC, as long as the defendant was a minor
AT THE TIME OF COMMISSION OF THE OFFENSE.
On Probation (Sec. 42)

Minors can apply for probation ANYTIME. Hence,
they can appeal first and file for probation later. The waiver
rule under Sec. 1 of PD 968 does not apply to them.
R.A. No. 9344
Intervention proceedings (sec. 4(l)):

A series of activities which are designed to address
issued that caused the child to commit an offense.
It may take the form of an individualized treatment

program which may include counseling, skills
training, education, and other activities that will
enhance his/her psychological, emotional and
psycho-social well-being.
R.A. No. 9344
Diversion proceedings (Sec. 4(j)):
An alternative, child-appropriate process of determining

the responsibility and treatment of a child in conflict with the
law on the basis of his/her social, cultural, economic,
psychological or educational background without resorting to
formal court proceedings.
If the imposable penalty for the crime committed six (6)

years or less imprisonment, the law enforcement officer or
Punong Barangay with the assistance of the local social welfare
and development officer shall conduct mediation, family
conferencing and conciliation or adopt indigenous modes of
conflict resolution in accordance with the best interest of the
child. (Sec. 23)
Where the imposable penalty for the crime committed

exceeds six (6) years imprisonment, diversion measures may
be resorted to only by the court.
R.A. No. 9344
On exemption from prosecution / status offenses:
The following offenses cannot be committed by children:
Prostitution (Sec. 58);
Vagrancy (Sec. 58);
Mendicancy (Sec. 58);
Use of Rugby (Sec. 58); and
Perjury, concealment or misrepresentation
relating to previous conviction as a minor (Sec.
5(l))
violation of local ordinances (R.A. No. 10630,
amending Section 57 of R.A. No. 9344).
N.B. R.A. No. 10158 decriminalized the crime of vagrancy.

R.A. No. 10630, amending R.A. No. 9344
Amendments to Juvenile Justice

and Welfare Act of 2006
(R.A. No. 10630, amending R.A. No. 9344)
A child fifteen (15) years of age or under at the

time of the commission of the offense shall be
exempt from criminal liability. A child is deemed to
be fifteen (15) years of age on the day of the fifteenth
anniversary of his/her birthdate (R.A. No. 10630,
amending Section 6 o R.A. No. 9344).
Serious Crimes Committed by Children Who Are Exempt From
Criminal Responsibility (R.A. No. 10630, amending Section 20
of R.A. No. 9344)
A child who is above twelve (12) years of age up to fifteen
(15) years of age and who commits parricide, murder, infanticide,
kidnapping and serious illegal detention where the victim is
killed or raped, robbery, with homicide or rape, destructive arson,
rape, or carnapping where the driver or occupant is killed or
raped or offenses under Republic Act No. 9165 (Comprehensive
Dangerous Drugs Act of 2002) punishable by more than twelve
(12) years of imprisonment, shall be deemed a neglected child
under P.D. No. 603 (The Child and Youth Welfare Code), as
amended, and shall be mandatorily placed in a special facility
within the youth care faculty or Bahay Pag-asa called the
Intensive Juvenile Intervention and Support Center (IJISC) (Sec.
20-A of R.A. No. 9344, as amended).
Repetition of Offenses (R.A. No. 10630, amending Section 20 of
R.A. No. 9344)
A child who is above twelve (12) years of age up to fifteen (15)

years of age and who commits an offense for the second time or
oftener shall be deemed a neglected child under P.D. No. 603, as
amended, and shall undergo an intensive intervention program
supervised by the local social welfare and development officer,
provided that:
the child was previously subjected to a community-based
intervention program;
if the best interest of the child requires that he/she be placed in
a youth care facility or Bahay Pag-asa, the childs parents or
guardians shall execute a written authorization for the
voluntary commitment of the child; and
Repetition of Offenses (R.A. No. 10630, amending

Section 20 of R.A. No. 9344)
If the child has no parents or guardians or if they

refuse or fail to execute the written authorization for
voluntary commitment, the proper petition for
involuntary commitment shall be immediately filed by
the DSWD or the LSWDO pursuant to P.D. No. 603, as
amended (Sec. 20-B of R.A. No. 9344, as amended).
BAR QUESTIONS
and
SUGGESTED ANSWERS
A, a young boy aged sixteen (16) at the time of the commission of the crime,
was convicted when he was already seventeen (17) years of age for violation
of Section 11 of R.A. 9165 or Illegal Possession of Dangerous Drugs for which
the imposable penalty is life imprisonment and a fine. Section 98 of the same
law provides that if the penalty imposed is life imprisonment to death on
minor offenders, the penalty shall be reclusion perpetua to death. Under
R.A. 9344, a minor offender is entitled to a privilege mitigating circumstance.
A. May the privilege mitigating circumstance of minority be appreciated
considering that the penalty imposed by law is life imprisonment and
fine?
B. Is the Indeterminate Sentence Law applicable considering that life
imprisonment has no fixed duration and the Dangerous Drugs Law is
malum prohibitum?
C. If the penalty imposed is more than six (6) years and a notice of appeal
was filed by A and given due course by the court, may A still file an
application for probation?
D. If probation is not allowed by the court, how will A serve his sentence?
A:
[Note: As criminal liability will depend on whether or not he acted with

discernment considering that he was only sixteen (16) years old when he
committed the crime. If he acted with discernment, he shall undergo the
Diversion Program under R.A. No. 9344, as amended. On the other hand,
if he did not act with discernment, he shall be exempt from criminal
liability and be subjected to an intervention program (R.A. No. 9344, as
amended by R.A. No. 10630.]
(answer continued in next two slides)

(A) Yes. In People v. Jacinto (G.R. No. 182239, 16 March 2011), where the
accused, a minor, was charged with qualified rape which is punishable by
death penalty, the Supreme Court applied the privileged mitigating
circumstance of minority. This is because the welfare, best interests, and
restoration of the child should always be the primordial or primary
consideration. In said case, the Supreme Court sentenced the accused to
reclusion perpetua because for purposes of determining the proper penalty
and applying the privileged mitigating circumstance of minority, the
penalty of death is still the penalty to be reckoned with.
(B) No. Under Section 98 of the Comprehensive Dangerous Drugs Act,

where the offender is a minor, the penalty for acts punishable by life
imprisonment to death shall be reclusion perpetua to death. In People v.
Larraaga (G.R. Nos. 138874-75, 31 January 2006), the Supreme Court, in
applying the privileged mitigating circumstance of minority, where the
statutory penalty is reclusion perpetua to death, ruled that the imposable
penalty is one degree lower, which is reclusion perpetua. Considering that
reclusion perpetua is an indivisible penalty, the Indeterminate Sentence Law
cannot be applied.
(C) A may not apply for probation since under the Probation
Law, probation cannot be extended to offenders sentenced to
serve imprisonment of more than six (6) years (P.D. No. 968).
(D) If probation is not allowed, A may benefit from the

provisions on R.A. No. 9344, as amended, regarding
suspension of sentence. Instead of pronouncing the judgment
of conviction, the court shall place the child in conflict with
the law under suspended sentence, without need of
application. Upon suspension of sentence and after
considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as
provided in the Supreme Court Rule on Juveniles in Conflict
with the Law (Sec. 38, R.A. No. 9344, as amended by R.A. No.
10630).
23. CONSPIRACY
(RECENT - 2000-2014 asked twice)
CONSPIRACY : Art. 8
Conspiracy and proposal to commit felony. Conspiracy and

proposal to commit felony are punishable only in the cases
in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and
decide to commit it.
There is proposal when the person who has decided to
commit a felony proposes its execution to some other
person or persons.
CONSPIRACY : Art. 8
First requisite Participation in the criminal
resolution
Two or more persons are said to have participated
in the criminal resolution when they were in
conspiracy at the time of the commission of the
crime.
It is well settled that a person may be convicted for

the criminal act of another where, between them,
there has been conspiracy or unity of purpose and
intention in the commission of the crime charged.
CONSPIRACY : Art. 8
A conspiracy exists when 2 or more persons come to an
agreement concerning the commission of a felony and
decide to commit it.
In order to hold an accused guilty as co-principal by

reason of conspiracy, it must be established that he
performed an over act in furtherance of the conspiracy,
either by actively participating in the actual commission
of the crime, or by lending moral assistance to his co-
conspirators by being present at the scene of the crime,
or by exerting moral ascendancy over the rest of the
conspirators as to move them to executing the
conspiracy.
CONSPIRACY : Art. 8
When there is no conspiracy, each of the offenders is

liable only for the act performed by him (i.e. degree of
participation under Articles 16 to 19, RPC)
When there is conspiracy, the act of one is the act of

all. There is collective criminal responsibility.
CONSPIRACY : Art. 8
Second requisite that the culprits carried out their

plan and personally took part in its execution, by acts
which directly tended to the same end.
The principals by direct participation must be at the

scene of the crime, personally taking part in its
execution.
The acts of each offender must directly tend to the

same end.
JURISPRUDENCE
People v. Bello (2004)
Conspiracy is predominantly a state of mind as

it involves the meeting of the minds and intent of the
malefactors. Consequently, direct proof is not essential
to establish it.
The existence of the assent of minds of the co-

conspirators may be inferred from proof of facts and
circumstances which, taken together, indicate that they
are parts of the complete plan to commit the crime.
JURISPRUDENCE
People v. Ramos (2004)
In conspiracy, there must be a showing that appellant

cooperated in the commission of the offense, either morally,
through advice, encouragement or agreement or materially
through external acts indicating a manifest intent of
supplying aid in the perpetration of the crime in an
efficacious way.
In such case, the act of one becomes the act of all, and
each of the accused will thereby be deemed equally guilty of
the crime committed.
JURISPRUDENCE
People v. Aguilos (2003)
Conspiracy may be implied if it is proved that two or

more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a
part so that their combined acts, though apparently
independent of each other, were, in fact, connected and
cooperative, indicating a closeness of personal association
and a concurrence of sentiment. There may be conspiracy
even if an offender does not know the identities of the
other offenders, and even though he is not aware of all
the details of the plan of operation or was not in on the
scheme from the beginning. One need only to
knowingly contribute his efforts in furtherance of it.
JURISPRUDENCE
People v. Comadre (2004)
Conspiracy is never presumed. Neither is it based

on presumptions and conjectures.
It must be proven by POSITIVE AND
CONCLUSIVE EVIDENCE, shown to exist as
clearly and convincingly as the commission of the
crime itself.
Mere presence of a person at the crime scene does
not make him a co-conspirator since conspiracy
transcends companionship.
JURISPRUDENCE
People v. Angelio (2012)
Conspiracy exists when two or more persons come to an

agreement concerning the commission of a felony and decide to
commit it. It can be inferred from the circumstances where all of the
accused acted in concert at the time of the commission of the
offense. Conspiracy is sufficiently established when the concerted
acts of the accused show the same purpose or common design and
are united in its execution. The testimony of the eyewitness proves
the overt acts of the two accused showing conspiracy. First, they
flagged down the tricycle driven by the victim. Second, accused
Olaso went inside the tricycle cab while accused Angelio sat at the
back of the driver. Third, while Angelio embraced and held the
driver, Olaso stabbed the victim. And fourth, they immediately fled
after the incident. When there is conspiracy, it is not important who
delivered the fatal blow since the act of one is the act of all. Thus,
Angelio is equally liable with Olaso, even if he did not stab the
victim.
JURISPRUDENCE
People v. Salvador (2013)
Conspiracy transcends companionship. Mere presence at

the locus criminis cannot by itself be a valid basis for conviction,
and mere knowledge, acquiescence to, or agreement to
cooperate, is not enough to constitute one as a party to a
conspiracy, absent any active participation in the commission of
the crime.
In a conspiracy to commit the crime of kidnapping for

ransom, the place where the victim is to be detained is logically
a primary consideration. The accuseds ownership of the
safehouse, and visits to bring food to the victims reasonably
indicate that they were among those who at the outset planned,
and thereafter concurred with and participated in the execution
of the criminal design.
JURISPRUDENCE
People v. Buntag (2004)
Direct proof is not essential to establish

conspiracy, and may be inferred from the collective acts
of the accused before, during and after the commission
of the crime
JURISPRUDENCE
People v. Federico (1995)
Conspiracy, just like the crime itself, must be

established by proof beyond reasonable doubt. And
the rule has always been that co-conspirators are
liable only for acts done pursuant to the
conspiracy; for other acts done outside the
contemplation of the co-conspirators or which are
not the necessary and logical consequence of the
intended crime, only the actual perpetrators are
liable. In such a case, the dictum that the act of one
is the act of all does not hold true anymore.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: At about 9:30 in the evening, while Dino and Raffy

were walking along Padre Faura Street, Manila.
Johnny hit them with a rock injuring Dino at the back.
Raffy approached Dino, but suddenly, Bobby, Steve,
Danny and Nonoy surrounded the duo. Then Bobby
stabbed Dino. Steve, Danny, Nonoy and Johnny kept
on hitting Dino and Raffy with rocks. As a result, Dino
died. Bobby, Steve, Danny, Nonoy and Johnny were
charged with homicide. Is there conspiracy in this
case? (1994 Bar)
A: Yes, there is conspiracy among the offenders, as

manifested by their concerted actions against the
victims, demonstrating a common felonious purpose
of assaulting the victims. The existence of the
conspiracy can be inferred or deduced from the
manner the offenders acted in commonly attacking
Dino and Raffy with rocks, thereby demonstrating a
unity of criminal design to inflict harm on their
victims.
24. DEATH OR PHYSICAL
INJURIES UNDER
EXCEPTIONAL
CIRCUMSTANCES
Death / SPI under exceptional circumstances :
Art. 247
Death or physical injuries inflicted under exceptional

circumstances. Any legally married person who,
having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any
of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro
If he shall inflict upon them physical injuries of any

other kind, he shall be exempt from punishment.
Art. 247
Death or physical injuries inflicted under exceptional
circumstances. xxx
These rules shall be applicable, under the same

circumstances, to parents with respect to their
daughters under eighteen years of age, and their
seducers, while the daughters are living with their
parents.
Any person who shall promote or facilitate the

prostitution of his wife or daughters, or shall otherwise
have consented to the infidelity of the other spouse shall
not be entitled to the benefits of this article.
Art. 247
Arr. 247 does not define a crime but grants a singular

mitigating circumstance specifically for the crimes of
parricide, homicide or serious physical injuries which
may have been committed under the exceptional
situation therein.
The sexual intercourse must be voluntary on the part of

the offending spouse who was therefore in the act of
adultery.
Art. 247
Requisites for application:
1. That a legally married person or a parent surprises his
spouse or his daughter, the latter under 18 years of age and
living with him, in the act of committing sexual intercourse
with another person;
2. That he or she kills any or both of them or inflicts upon any
or both of them any serious physical injury, in the act or
immediately thereafter; and
3. That he has not promoted or facilitated the prostitution of
his wife or daughter, or that he or she has not consented to
the infidelity of the other spouse.
Surprise to come upon suddenly and unexpectedly

JURISPRUDENCE
People v. Abarca (1987)
Though quite a length of time, about an hour, had

passed between the time accused Abarca caught his wife
in sexual intercourse with Koh and the time the latter was
actually shot, the shooting must be understood to be the
continuation of the pursuit of the victim by Abarca. The
RPC, in requiring that the accused shall kill any of them or
both of themimmediately after surprising his spouse in
the act of intercourse, does not say that he should commit
the killing instantly thereafter. It only requires that the
death caused be the proximate result of the outrage
overwhelming the accused after chancing upon the spouse
in the basest act of infidelity.
JURISPRUDENCE
U.S. v. Vargas, 2 Phil. 194; People v. Lusod, 8 ACR 119

There must be no unnecessary interruption from the
discovery of the illicit act of the offending couple and
the killing of either or both of them by the accused
People v. Rabandaban, 85 Phil. 636

The killing must be specifically because of that
infidelity.
People v. Abarca (1987)

A one hour interval is still within the ambit of the law
and the husband is not liable for killing the paramour.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: Pete, a security guard, arrived home late one night after
rendering overtime. He was shocked to see Flor, his wife,
and Benjie, his best friend, completely naked having sexual
intercourse. Pete pulled out his service gun and shot and
killed Benjie. Pete was charged with murder for the death
of Benjie. Pete contended that he acted in defense of his
honor and that, therefore, he should be acquitted of the
crime.
The court found that Benjie died under exceptional

circumstances and exonerated Pete of the crime, but
sentenced him to destierro, conformably with Article 247 of
the Revised Penal Code. The court also ordered Pete to pay
indemnity to the heirs of the victim in the amount of
P50,000.00. Is the defense of Pete meritorious? Explain.
(2005 Bar)
SUGGESTED ANSWER:
No. A person who commits acts penalized under Article 247 of the
Revised Penal Code for death or serious physical injuries inflicted
under exceptional circumstances is still criminally liable. However,
this is merely an exempting circumstance when the victim suffers
any other kind of physical injury. In the case at bar, Pete will suffer
the penalty of destierro for the death of Benjie.
ALTERNATIVE ANSWER:
No. Pete did not act in defense of his honor. For this defense to
apply under Art. 11, there must be an unlawful aggression which
is defined as an attack or material aggression that poses a danger
to his life or personal safely. It must be a real aggression
characterized by a physical force or with a weapon to cause injury
or damage to one's life. (People v. Nahayra, G.R. Nos. 96368-69,
October 17, 1991; People v. Housing, G.R. No. 64965, July 18, 1991)
Under Article 247 of the Revised Penal Code, is destierro a penalty?
Explain.
SUGGESTED ANSWER:
In the case of People v. Abarca, G.R. No. 74433, September 14, 1987, the
Court ruled that Article 247 does not define a felony. However, it went
on to state that the penalty is merely banishment of the accused,
intended for his protection. Punishment, therefore, is not inflicted on
the accused.
ALTERNATIVE ANSWER:
Yes. Article 247 of the Revised Penal Code does not define and provide
for a specific crime but grants a privilege or benefit to the accused for
the killing of another or the infliction of Serious Physical Injuries.
Destierro is a punishment whereby a convict is banished to a certain
place and is prohibited from entering or coming near that place
designated in the sentence, not less than 25 kms. (People v. Araquel, G.R.
No. L-12629, December 9, 1959)
Did the court correctly order Pete to pay indemnity

despite his exoneration under Article 247 of the Revised
Penal Code? Explain.
SUGGESTED ANSWER:
Yes, because the privilege defined under this Article

exempts the offender from criminal liability but not from
civil liability. (People v. Abarca, G.R, No. L-74483, September
14, 1987; Art. 12, Revised Penal Code)
25. FALSIFICATION OOF
PUBLIC DOCUMENTS
&
44. PRIVATE DOCUMENTS
(RECENT - 2000-2014 was not asked)
FALSIFICATION OF A PUBLIC DOCUMENT :
Art. 171
Falsification by public officer, employee or notary or

ecclesiastic minister. The penalty of prisin mayor
and a fine not to exceed P5,000 pesos shall be imposed
upon any public officer, employee, or notary who,
taking advantage of his official position, shall falsify a
document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature

or rubric;
Art. 171
2. Causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate;
3. Attributing to persons who have participated in an

act or proceeding statements other than those in fact
made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;

Art. 171
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document

purporting to be a copy of an original document when
no such original exists, or including in such a copy a
statement contrary to, or different from, that of the
genuine original; or
8. Intercalating any instrument or note relative to the

issuance thereof in a protocol, registry, or official book.
Art. 171
The same penalty shall be imposed upon any

ecclesiastical minister who shall commit any of the
offenses enumerated in the preceding paragraphs of
this article, with respect to any record or document of
such character that its falsification may affect the civil
status of persons.
Falsification by public officer, employee
or notary or ecclesiastic minister
Art. 171
Elements:
1. Offender is a public officer, employee, or notary
public;
2. He takes advantage of his official position;
3. He falsifies a document by committing any of the
following acts:
a. Counterfeiting or imitating any handwriting,
signature or rubric;
b. Causing it to appear that persons have
participated in any act or proceeding when they
did not in fact so participate;
Art. 171
3. He falsifies a document by committing any of the
following acts:
xxx xxx xxx
c. Attributing to persons who have participated in an
act or proceeding statements other than those in
fact made by them;
d. Making untruthful statements in a narration of
facts;
e. Altering true dates;
f. Making any alteration or intercalation in a genuine
document which changes its meaning;
Art. 171
3. He falsifies a document by committing any of
the following acts:
xxx xxx xxx
g. Issuing in an authenticated form a document
purporting to be a copy of an original document
when no such original exists, or including in
such a copy a statement contrary to, or different
from, that of the genuine original; or
h. Intercalating any instrument or note relative to
the issuance thereof in a protocol, registry, or
official book; and
Art. 171
4. In case the offender is an ecclesiastical minister

who shall commit any of the offenses
enumerated, with respect to any record or
document of such character that its
falsification may affect the civil status of
persons.
Art. 171
Even if the offender is a public officer but the
falsification committed by him is upon a document
which does not pertain to his office, it was
committed without abuse of his office. Thus it will
not fall under Art 171 but Art 172.
A private person who cooperates with a public

officer in the falsification of public documents is
guilty under Art 171 and incurs the same liability
and penalty as the public officer as there is
conspiracy.
Falsification by private individuals and use of
falsified documents : Art. 172
Falsification by private individuals and use of falsified

documents. The penalty of prisin correccional in its
medium and maximum periods and a fine of not more
than P5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the

falsifications enumerated in the next preceding article
in any public or official document or letter of
exchange or any other kind of commercial document;
and
2. Any person who, to the damage of a third party, or
with the intent to cause such damage, shall in any
private document commit any of the acts of
falsification enumerated in the next preceding
article.
Any person who shall knowingly introduce in

evidence in any judicial proceeding or to the damage
of another or who, with the intent to cause such
damage, shall use any of the false documents
embraced in the next preceding article, or in any of the
foregoing subdivisions of this article, shall be
punished by the penalty next lower in degree.
Acts punished
1. Falsification of public, official or commercial

document by a private individual;
2. Falsification of private document by any person;
3. Use of falsified document.
1. Offender is a private individual or public officer

or employee who did not take advantage of his
official position;
2. He committed any act of falsification under Art
171;
3. The falsification was committed in a public,
official, or commercial document or letter of
exchange.
Four kinds of documents:
1. Public document in the execution of which, a person

in authority or notary public has taken part;
2. Official document in the execution of which a public
official takes part;
3. Commercial document or any document recognized
by the Code of Commerce or any commercial law;
and
4. Private document in the execution of which only
private individuals take part.
Private document may acquire the character of a

public document when it becomes part of an
official record and is certified by a public officer
duly authorized by law.
Elements under paragraph 2
a. Offender committed any of the acts of falsification
except Article 171(7), that is, issuing in an
authenticated form a document purporting to be a
copy of an original document when no such original
exists, or including in such a copy a statement
contrary to, or different from, that of the genuine
original;
b. Falsification was committed in any private
document;
c. Falsification causes damage to a third party or at
least the falsification was committed with intent to
cause such damage.
There is no complex crime of estafa through

falsification of a private document because the
immediate effect of falsification of a private
document is the same as that of estafa.
The crime is falsification of a public document,

even if the falsification took place before the
private document becomes part of the public
records, if the document is intended by law to
be part of the public or official record.
Generally, falsification has no attempted or

frustrated stage. But there may be a frustrated
falsification if the falsification is imperfect.
Falsification of a Public Falsification of a Private
document document
Mere falsification is enough Prejudice/damage to 3rd

person or intent to cause it
is enough
Committed by any of the 8 Cannot be committed by
means under Art 171 the ways in par 7 & 8 of Art
171
Principal thing punished is

violation of public faith and
destruction of truth as
therein solemnly
proclaimed
JURISPRUDENCE
Santos v. Sandiganbayan (2000)
Under Article 171 (4) of the Revised Penal Code,

any public officer or employee who, taking advantage of
his official position, makes untruthful statements in a
narration of facts, commits the crime of falsification of
public documents.
This kind of falsification requires the concurrence
of the following requisites: (a) the offender makes in a
document untruthful statements in a narration of facts;
(b) he has a legal obligation to disclose the truth of the
facts narrated by him; and (c) the facts narrated by the
offender are absolutely false.
JURISPRUDENCE
Acuna v. Deputy Ombudsman (2005)
In prosecutions for perjury, a matter is material if

it is the "main fact which was the subject of the inquiry, or
any circumstance which tends to prove that fact . . ..
People v. Choa (2003)

It is not necessary that the proceeding in which the
perjury is alleged to have been committed be first
terminated before a prosecution for the said crime is
commenced. At the time he filed his petition for
naturalization, he had committed perjury.
JURISPRUDENCE
Galeos v. People (2011)
The elements of falsification of public documents under Article

171, par. 4 of the Revised Penal Code (RPC) are as follows: (a) the
offender makes in a public document untruthful statements in a
narration of facts; (b) he has a legal obligation to disclose the truth of the
facts narrated by him; and (c) the facts narrated by him are absolutely
false. In addition to the afore-cited elements, it must also be proven that
the public officer or employee had taken advantage of his official
position in making the falsification. In falsification of public document,
the offender is considered to have taken advantage of his official
position when (1) he has the duty to make or prepare or otherwise to
intervene in the preparation of a document; or (2) he has the official
custody of the document which he falsifies. Likewise, in falsification of
public or official documents, it is not necessary that there be present the
idea of gain or the intent to injure a third person because in the
falsification of a public document, what is punished is the violation of
the public faith and the destruction of the truth as therein solemnly
proclaimed.
JURISPRUDENCE
ANSALADO v. PEOPLE (2010)
For a complex crime of estafa through falsification of a public
document to prosper, all the elements of both the crimes of estafa
and falsification of a public document must exist.
AMBITO v. PEOPLE (2009)

The falsification of a public, official, or commercial document
may be a means of committing estafa, because before the falsified
document is actually utilized to defraud another, the crime of
Falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime
of falsification has already existed. Actually utilizing that falsified
public, official or commercial document to defraud another is
estafa. But the damage is caused by the commission of estafa, not by
the falsification of the document. Therefore, the falsification of the
public, official or commercial document is only a necessary means
to commit the estafa.
BAR QUESTIONS
and
SUGGESTED ANSWERS
Q: A falsified official or public document was found in

the possession of the accused. No evidence was
introduced to show that the accused was the author of
the falsification. As a matter of fact, the trial court
convicted the accused of falsification of official or public
document mainly on the proposition that "the only
person who could have made the erasures and the
superimposition mentioned is the one who will be
benefited by the alterations thus made" and that "he
alone could have the motive for making such
alterations". Was the conviction of the accused proper
although the conviction was premised merely on the
aforesaid ratiocination? Explain your answer. (1999 Bar)
A: Yes, the conviction is proper because there is

a presumption in law that the possessor and
user of a falsified document is the one who
falsified the same.
Q: Filthy, a very rich businessman, convinced Loko, a

clerk of court, to issue an order of release for Takas,
Filthys cousin, who was in jail for a drug charge. After
receiving P500,000.00, Loko forged the signature of the
judge on the order of release and accompanied Filthy
to the detention center. At the jail, Loko gave the
guard P10,000.00 to open the gate and let Takas out.
What crime or crimes did Filthy, Loko, and the guard
commit? (2014 Bar)
A: Loko is guilty of Direct Bribery under Article 210 of the
RPC because he agreed to perform acts constituting a crime,
i.e., forging the signature of the judge and giving the guard a
bribe money of P10,000.00, in the performance of his official
duties as clerk of court, in consideration of the amount of
P500,000.00. He is likewise guilty of the crime of Falsification
of Public Documents under Article 171 of the RPC for forging
the signature of the judge in the order of release of Takas.
He is also liable, in conspiracy with the guard, for the

felony Conniving with or Consenting to Evasion under Article
223 of the RPC. Loko is liable for violation of Section 3(a) R.A.
3019, as amended, for influencing or inducing the guard, for
the amount of P10,000.00, to release Takas from prison.
Filthy is guilty of Corruption of Public Officials under Article
212 of the RPC for giving the P500,000.00 bribe money to Loko for
the release of his cousin, Talas. He is likewise guilty Direct Bribery
for conspiring with Loko to effect the unlawful release of Takas from
prison.
The guard is guilty of Direct Bribery because he received the

P10,000.00 to open the gate of the detention center and let Takas out.
He is likewise liable for Conniving with or Consenting to Evasion
because he conspired with Loko and Filthy in facilitating the escape
of Takas by opening the gate of the detention center. He is likewise
guilty of violation of Section 3(a) of R.A. No. 3019 because he
allowed himself to be induced by another public officer to perform
an act constituting an offense, which is Conniving with or
Consenting to Evasion.

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THE PATTERNS OF CRIME:

REVIEW OF THE TOP ISSUES/CONCEPTS

(1979 2014 BAR EXAMINATIONS)

Swindling (estafa). Any person who shall defraud another

1st. The penalty of prisin correccional in its maximum

Three general ways of committing Estafa:

a. with unfaithfulness or abuse of confidence

Elements of Estafa IN GENERAL:

1. That the accused defrauded another by

2. That damage or prejudice capable of

a. the offended party, or

DECEIT is NOT an essential requisite of estafa

i. That the offender has an onerous obligation to

There is estafa even though such obligation

Thus, estafa may arise even if the thing to be

i. That money, goods, or other personal property be

ii. There is (a) misappropriation or conversion of such

N.B. The 4th element is not necessary where there is

Offender acquires the Offender acquires only

Additional test: In theft, upon delivery of the thing to

The offenders are entrusted with funds or property

i. That the paper with the signature of the

ii. That the offended party should have delivered it

N.B. The paper with the signature in blank MUST

Three ways of committing estafa under this

a. By using a fictitious name;

Illustration: When a person asks money from another

N.B.: "without prejudice to an action for calumny"

1. That the offender postdated a check, or issued a check

2. That such postdating or issuing was done when:

The issuance of a check must NOT be for a pre-existing

When check is issued in substitution of a promissory note,

When the check is issued by a guarantor, there is no estafa

Prima facie evidence of deceit:

Failure of the drawer of the check to deposit the

Three ways of committing estafa under the this provision:

i. That the offender induced the offended party to

N.B. If no intent to defraud, the act of destroying

The offender is a private The offender is a public

There is intent to defraud Intent to defraud not an

People v. Hernandez (2002)

A person who is convicted of illegal recruitment may, in

Estafa under Article 315, paragraph 2 of the Revised Penal

Milla v. People (2012)

In a case for estafa through falsification of

The falsification of a public, official, or commercial document

Actually utilizing that falsified public, official, or commercial

A person who is convicted of illegal recruitment

Pablo v. People (2004)

Deceit is defined as the false representation of a matter of

False pretense is any deceitful practice or device by which

Gamboa v. People (2014)

An agent who entrusts the principals property to a

A: Malversation differs from estafa in that

(A) Y as the one who negotiated the check contrary to

Q: A and B agreed to meet at the latter's house to

B who accommodated A with his check may

Malo was charged with estafa under Article 315

A: Yes. Malo may be prosecuted for Estafa under Art.