2015 Last Reviewer Criminal Law

1. If the marriage is not solemnized in accordance with Muslim Law, the accused cannot claim criminal exemption from liability for bigamy on the basis his religious belief as a Muslim because of the generality principle. The Code of Personal Muslim Laws, which exempts Muslim from being prosecuted for bigamy, is not applicable since the marriage was not made in accordance with the Muslim law (Nollora, Jr. vs. People, G.R. No. 191425, September 7, 2011).

2. Consular officers are immune from criminal prosecution of acts performed in the exercise of function (1967 Convention on Consular Relation). Immunity does not cover slander or reckless imprudence resulting in homicide for not being function-related. A Chinese diplomat, who killed another Chinese diplomat in Cebu, is immune from criminal prosecution (The Vienna Convention on Diplomatic Relations). Unlike consular officers, diplomatic agents are vested with blanket diplomatic immunity from civil and criminal suits (Minucher vs. Hon. CA, G.R. No. 142396, February 11, 2003).

            3. An incumbent President is immune from criminal prosecution of act committed in the performance of his duties (Estrada vs. Desierto, G.R. No. 146710-15, March 2, 2001). President Aquino during the period of his incumbency cannot be charged with simple negligence resulting in multiple homicides in connection with the Mamasapano incident because his decisions concerning the handling of the police operation leading to the tragic event are official acts. But a Vice-President is not immune from criminal prosecution of plunder and corruption under RA No. 3019 committed while he was a mayor for not being function related. Moreover, implementation of penalty of imprisonment for said crimes is not inconsistent with the constitutional rule on removal through impeachment since he can function as Vice-President while serving sentence in prison.

4. Under the Convention on the Law of the Sea, the flag state of foreign merchant vessel passing through the territorial sea has jurisdiction over crimes committed therein. However, the Philippines can exercise jurisdiction to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage in the following cases: (1) if the consequences of the crime extend to the coastal State; (2) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (3) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (4) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

Serious physical injuries committed in a foreign vessel docks in a Philippine port against a passenger thereof is within the jurisdiction of the Philippine court since this crime disturb the peace of the country.  

Under the principle of territoriality, the court has jurisdiction over concubinage involving illicit relationship maintained in the Philippines; but it has no jurisdiction over bigamy involving subsequent marriage contracted in Taiwan. The court has also jurisdiction over crime committed in Kalayaan Islands or Scarboruogh Shoal because the Baseline Law (RA No. 9522) declares that the Philippines exercise sovereignty and jurisdiction over it.

5. Under the flag state rule, the court has jurisdiction over hijacking of PAL airplane in an American territory since it its registered in the Philippines; but it has no jurisdiction over murder committed in vessel registered in Panama while on high seas although it is owned by a Filipino. Under the protective principle, the court has jurisdiction over forgery of Philippine money committed in Taiwan whether by a Filipino or an alien but not over forgery of US dollars committed therein. Under the extraterritoriality rule, the court has jurisdiction over plunder, direct bribery and falsification of document committed by a public officer in a Philippines consular premises stationed in America but not corruption of public officer and falsification of document committed by private individual as principal by inducement. Under the universality principle, the court has jurisdiction over piracy committed on high seas for being a universal crime; but it has no jurisdiction over murder qualified by the circumstance of taking advantage of the calamity brought about by piracy on high seas. The 12-mile territorial water of Taiwan or Sabah may be considered as high seas; hence, piracy committed therein can be prosecuted in the Philippines (People vs. Tulin, G.R. No. 111709, August 30, 2001).

6. The State shall exercise jurisdiction over trafficking in person even if committed outside the Philippines the crime being a continuing offense subject the following conditions: (1) The trafficking in persons has been commenced in the Philippines and other elements have been committed in another country; (2) The suspect or accused: (a) Is a Filipino citizen; or (b) Is a permanent resident of the Philippines; or (c) Has committed the act against a citizen of the Philippines. (3) A foreign government has not prosecuted or is prosecuting person for trafficking in person except when there is an approval of the Secretary of Justice (Section 26-A of RA No. 9208 as amended RA No. 10364).

7. The provisions of the Terrorism Law or Human Security Law shall apply to individual persons who, although physically outside the territorial limits of the Philippines: 1. Conspire or plot to commit terrorism inside the territorial limits of the Philippines; 2. Commit any of the crimes involving terrorism on board Philippine ship or Philippine airship; 3. Commit any of the crimes involving terrorism within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; 4. Commit any of the crimes involving terrorism against Philippine citizens or persons of Philippines descent, where their citizenship or ethnicity was a factor in the commission of the crime; 5. Commit any of the crimes involving terrorism directly against the Philippine government (Section 58 of RA No. 9372).

8. Law decriminalizing an act shall be given retroactive effect even if the accused is a habitual delinquent. Nullum crimen nulla poena sine lege. RA No. 10158 decriminalizes vagrancy under Article 202 of RPC since vagrants as victims of poverty should be protected rather than punished. RA No. 10655 decriminalizes premature marriage under Article 351 of RPC for being discriminatory and antiquated.

9. Reclusion perpetua, which has duration of 40 years under Article 27 of RPC and 30 years under Article 29 of RPC as amended by RA No. 10592, is a lighter penalty than life imprisonment, which has no duration. Hence, amendatory law, which prescribes reclusion perpetua instead of life imprisonment for a crime punishable under it, is favorable to the accused; and thus, it shall be given a retroactive effect (People vs. Morilla, GR No. 189833, February 05, 2014).

              10. Police authorities, who manned a checkpoint because of information that there are armed rebels on board a vehicle, have the duty to validate the information, identify them, and to make a bloodless arrest unless they were placed in real mortal danger. If they shot the suspected vehicle, which did not stop after have been flagged down and killed the occupants therein, who turned out be unarmed civilians, they are liable for multiple homicides. The mistake of fact principle is not applicable since there is negligence or bad faith on their part (Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012).

              9. The accused killed by mistake a thief, who turned out to be his girlfriend. Invasion of property shall be considered as an unlawful aggression for purpose of self-defense because of the right of the owner to resist it in accordance with the self-help principle (Article 429 of the Civil Code). However, the means employed, and that is, killing the mistaken invader, is not reasonable; hence, the accused is only entitled to the privileged migrating circumstance of incomplete defense of property (People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983; US vs. Apego, G.R. No. 7929, November 8, 1912).

              10. Motive vs. criminal intent - Motive is the moving power which impels a person to do an act for a definite result; Intent is the purpose for using a particular means to bring about a desired result. Motive is not an essential element of a crime, and, hence, need not be proven for purposes of conviction.  Motive is essential only when there is doubt as to the identity of the culprit or when the evidence is circumstantial or inconclusive. Criminal intent renders an act a felony. It is the general element of all intentional felony.

11. Mala in se vs. mala prohibita - Mala in se are inherently wrong or immoral; while mala prohibita are not inherently wrong; they are only wrong because they are prohibited by law. In malum in se, good faith or lack of criminal intent is a defense while in malum prohibitum, good faith is not a defense. Modifying circumstances can be appreciated in malum in se. These circumstances are not appreciable in malum prohibitum unless the special law that punishes them adopts the technical nomenclature under the Revised Penal Code. Mala in se are punishable under the Revised Penal Code or special laws where the crime punishable therein is wrong in nature. Mala prohibita is punishable by special laws. 

 

12. RPC is not generally applicable to malum prohibitum. However, when a special law (such as RA No. 10591 on illegal possession of loose firearm), which punishes malum prohibitum, adopts the nomenclature of the penalties in RPC, the the provisions under this Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994) such as: (1) Article 68 on the privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735, October 24, 2012); (2) Article 64 on application of penalty in its minimum period if there is a confession (Jacaban vs. People, GR No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733, September 21, 2007); and (3) Article 160 on special aggravating circumstance of quasi-recidivism (People vs. Salazar, G.R. No. 98060, January 27, 1997).

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

If the special law has adopted the technical nomenclature of the penalties of RPC, Article 6 on stages shall be given a suppletory effect. But if the special law has not barrowed its penalties from RPC, Article 6 shall not be given a suppletory effect unless the special law prescribes a penalty for committing the crime at the attempted or frustrated stage. For example, RA No. 9165 has not adopted the technical nomenclature of the penalties of RPC for crimes involving dangerous drugs. But Section 26 of RA No. 9165 punishes attempted sale of dangerous drug with the penalty prescribed for consummated sale of dangerous drug.

              13. Proximate cause is the cause which is in the natural and continuous sequence unbroken by intervening cause produces death. Intervening cause is an active and foreign force that breaks the relationship between the felony and the death.

              A inflicted slight physical injuries upon B causing the latter to run away. While escaping, B was bitten by a dog, and as a consequence he suffered serious physical injuries. A is only liable for slight physical injuries. The crime that he committed is not the proximate cause of the serious physical injuries sustained by B. The dog bite is an efficient intervening cause or an active and foreign force that breaks the relationship between the crime of slight physical injuries committed by A and the serious physical injuries suffered by B.  

              The accused stabbed the victim. After 22 days, the symptoms of tetanus infection manifested. The next day, he died. Since the victim immediately died, the infection is severe. The incubation period of severe tetanus is less than 14 days. Since the stabbing happened 22 days before the manifestation of infection and the incubation period of this infection is less than 14 days, the victim was not infected at the time of stabbing. Hence, the infection is an efficient intervening cause. The accused is liable for physical injuries since the stabbing is not the proximate cause of the death of victim (Villacorta vs. People, G.R. No. 186412, September 7, 2011, Justice De Castro). It would have been different if the victim died due to tetanus of which he was infected when the accused inflicted injuries upon him. In such case, the proximate cause of the death is the infliction of injuries. Hence, he is liable for homicide (People vs. Cornel, G.R. No. L-204, May 16, 1947).

14. Accused kicked and punched the victim, who died as a consequence. Circumstance shows lack of intent to kill. However, accused is liable for homicide because intent to kill is conclusively presumed. Even if there is no intent to kill, the penal law holds the aggressor responsible for all the consequences of his unlawful acts. However, they are entitled to the mitigating circumstance of praeter intentionem (Wacoy vs. People, G.R. No. 213792, June 22, 2015).

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

16. Under Article 4 of RPC, criminal liability shall be incurred by any person committing an intentional felony (such an unjust vexation or assistance to suicide committed in accordance with suicide pact) although the wrongful act done be different from that which he intended. Suicide is not an intentional felony; hence, a pregnant woman who attempted to commit suicide is not liable for abortion due to the consequent death of the infant. Practicing medicine without license is an offense punishable under special law but not an intentional felony within the meaning of Article 4. Hence, a quack doctor, who killed his patient while treating him, is only liable for reckless imprudence resulting in homicide. The concept of carnapping is the same as that of theft and robbery. Although not punishable under RPC, it can be treated as an intentional felony within the meaning of Article 4.     

17. Stealing check, which was dishonored by the bank upon presentment for encashment due to insufficiency of funds, constitutes impossible crime of theft since there is factually impossibility to accomplish the crime of qualified theft because the check is unfunded (Jacinto vs. People, G.R. No. 162540, July 13, 2009). Firing a gun at the unoccupied bedroom, where the victim is supposed to be sleeping, constitutes impossible crime of homicide because it is factually impossible to kill a victim, who was not in the bedroom (Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992).  But throwing grenade at the unoccupied bedroom, where the victim is supposed to be sleeping, constitutes arson if the bedroom was burned as a consequence. Kidnapping for ransom consummates at the precise moment when the victim was abducted. Receiving ransom payment is not an element of this crime. What is important is that the victim was kidnapped for purpose of ransom. Hence, impossibility to obtain the ransom payment will not render the crime impossible (People vs. Tan, G.R. No. 95322, March 1, 1993).

18. The intent of the person in committing preparatory act has not ceased to be equivocal. In sum, his criminal intent to kill is not clear. Hence, preparatory acts such as buying poison, conspiring and going to the place where the crime agreed will be committed are not constitutive of a felony even at the attempted stage. However, preparatory acts are punishable if the law prescribes a penalty for its commission such as conspiracy to commit rebellion or possession of picklock.

Inflicting non-mortal wound upon the victim by shooting him constitutes physical injuries if the accused did not further shoot him to inflict mortal wounds. The crime is not attempted homicide because failure to shoot him further shows lack of intent to kill (Pentecostes, Jr. vs. People, GR No. 167766, April 7, 2010). Moreover, spontaneous desistance from further shooting to victim to inflict mortal wounds is a defense in attempted homicide. But inflicting mortal wound upon the victim constitutes attempted homicide even if the accused desisted from further shooting him. The fact that the wounds are mortal indicates intent to kill. Moreover, spontaneous desistance from further shooting is not a defense in frustrated homicide (People vs. Abella, G.R. No. 198400, October 07, 2013).

19. Touching of either labia majora or labia minora of the pudendum by an erect penis capable of penetration consummates the crime (People vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932, October 19, 2011). Touching the labia by instrument or object (such as tongue or finger) also consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011). If there is no touching of the labia, the crime is either attempted rape or acts of lasciviousness depending upon the intent the offender. If the intention is to have sexual intercourse, the crime is attempted rape; otherwise, the crime is acts of lasciviousness. 

Undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her vagina by the hand of the accused (People vs. Banzuela, G.R. No. 202060, December 11, 2013, Justice De Castro) or rubbing his penis on the mons pubis of the pudendum (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts of lasciviousness because intent to have sexual intercourse is not clearly shown.

To be held liable of attempted rape, it must be shown that the erectile penis is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014) or the offender actually commenced to force his penis into the victim's sexual organ (People vs. Banzuela, supra). Touching her genitalia with his hands and mashing her breasts are "susceptible of double interpretation." These circumstances may show that the intention of the accused is either to commit rape or simple seduction (or acts of lasciviousness). Since intent to have sexual intercourse is not clear, accused could not be held liable for attempted rape. Hence, he is only liable for acts of lasciviousness (Cruz vs. People, supra; People vs. Lamahang).

20. To exempt himself from criminal liability, a conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to commit the felony and prevent the commission thereof (People vs. Ebet, G.R. No. 181635 November 15, 2010). Thus, a conspirator, who dissuades his co-conspirator from committing the crime agreed upon, or calls the police authorities to prevent the commission of the crime, or fails to be present at or ran away from the place of commission, is not criminally liable since he by his acts detaches himself from conspiracy.  

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

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

            23. But even if there is conspiracy, the act of the wife in committing parricide or killing her husband by means of poison is not imputable to a stranger. Since relationship is personal to the wife, it can only be appreciated against the person against whom the qualifying circumstance is attendant because of Article 62 of RPC. Hence, the wife is liable for parricide qualified by the circumstance of relationship with ordinary circumstance of by means of poison, while the stranger is liable for murder qualified by the circumstance of by means of poison (People vs. Bucsit G.R. No. 17865, March 15, 1922).

            24. Once conspiracy is established between several accused in the commission of the crime of robbery, they would all be equally culpable for the rape committed by anyone of them on the occasion of the robbery, unless anyone of them proves that he endeavored to prevent the others from committing rape (People v. Suyu, G.R. No. 170191, August 16, 2006). However, if there is no evidence that the accused is aware of the commission of rape, he could not have prevented the rape. Hence, the accused is only liable for robbery and not robbery with rape (People v. Canturia, G.R. No. 108490 June 22, 1995). These principles are applicable to kidnapping with rape (People vs. Anticamaray, GR No. 178771, June 08, 2011).

25. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot (People v. Del Castillo, G.R. No. 169084, January 18, 2012; People vs. Roman, GR No. 198110, July 31, 2013; People vs. Malicdem, G.R. No. 184601, November 12, 2012 (Justice De Castro)

26. Retaliation is not the same as self-defense. In retaliation, the aggression that was begun by the injured party already ceased when the accused attacked him, while in self-defense the aggression still existed when the aggressor was injured by the accused (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012). Although the unlawful aggression had ceased when accused shot the victims, it was nonetheless a grave offense for the vindication of which accused may be given the benefit of a mitigating circumstance (David vs. CA, G.R. No. 111168 June 17, 1998).

            27. "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Section 3 of RA No. 9262). Each of the phases of the cycle of violence must be proven to have characterized “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. (People vs. Genosa, G.R. No. 135981, January 15, 2004). The three phases of the Battered Woman Syndrome are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving or non-violent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004; Answer to the 2010 Bar Examination Questions by UP Law Complex). The essence of this defense of “Battered Woman Syndrome” as a defense is that battered woman, who suffers from physical and psychological or emotional distress, is acting under an irresistible impulse to defend herself although at the time of commission of the crime the batterer-victim had not yet committed unlawful aggression. In Genosa supra, it was held that “it is crucial to the BWS defense is the state of mind of the battered woman at the time of the offense. She must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.” That is why even in the absence of “actual aggression” or any other element of self-defense, a woman, who is found to be suffering from battered woman syndrome is not criminally liable for killing her husband.

            28. Status offenses refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts (Section 3 of RA No. 9344). In sum, a status offense is a crime one of the elements of which is that the offender must be child. A child shall not be punished for committing a status offense (Section 57 of RA No. 9344). Section 57-A of RA No. 9344 as amended by RA 10630, local ordinances enacted concerning juvenile status offenses such as curfew violation shall be for the protection of children. No penalty shall be imposed on children for said violations, and they shall instead be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents. Appropriate intervention programs shall be provided for in such ordinances. The child shall also be recorded as a child at risk and not as a child in conflict with the law.

29. A child, who are already serving sentence, shall likewise benefit from the retroactive application of RA 9344 (even if he is a habitual delinquent). They shall be immediately released if they are exempt from criminal liability under this law (Section 68 of RA No. 9344; People vs. Monticalvo, G.R. No. 193507, January 30, 2013).

            30. If the child is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively presumed.

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

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

            32. If the child is above 15 years of age but below 18 years of age, minority is either exempting or privileged mitigating. If the child acted without discernment, the circumstance of minority is exempting. If the child acted with discernment, the circumstance of minority is a privileged mitigating. This circumstance shall be appreciated even if minority was not proved during the trial and that his birth certificate was belatedly presented on appeal (People vs. Agacer, G.R. No. 177751, January 7, 2013).

            Under Section 98 of RA No. 9165, the provisions in RPC are not applicable unless the accused is a minor. In such case, the penalty of life imprisonment shall be considered reclusion perpetua. In sum, if the accused is a minor, Article 68 of RPC on the privilege mitigating circumstance of minority shall apply to crime of illegal possession of dangerous drug even though this is malum prohibitum punishable by life imprisonment. Hence, the penalty of life imprisonment for illegal possession of dangerous drug committed by a minor, which is treated as reclusion perpetua, shall be graduated to reclusion temporal because of the privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011)

            33. While Section 38 of RA 9344 (Juvenile Justice Law) provides that suspension of sentence can still be applied even if the child in conflict with the law is already 18 years of age or more at the time of the pronouncement of his guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. Hence, the child in conflict with the law, who reached 21 years at the time of pronouncement of guilt, cannot avail of privilege of suspension of sentence (People vs. Mantalba, G.R. No. 186227, July 20, 2011; People vs. Salcedo, GR No. 186523, June 22, 2011; People vs. Arpon, G.R. No. 183563, December 14, 2011 (Justice De Castro; People vs. Monticalvo, G.R. No. 193507, January 30, 2013).

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

Under Section 9 of PD 968, one is sentenced to suffer a penalty (maximum indeterminate penalty) of more than 6 years is not qualified to apply for probation (e.g. one who is sentenced to suffer 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum is not entitled to apply for probation). However, under Section 70 of RA No. 9165 (Dangerous Drugs Law), a first time minor offender can apply for probation for the crime of illegal possession or use of dangerous drug even if the penalty is higher than 6 years of imprisonment. But Section 70 of RA 9165 is only applicable if the minor is being charged with possession or use of dangerous drugs. If the charge is selling dangerous drugs, the applicable rule is Section 24 of RA No. 9165, which disqualifies drug traffickers and pushers for applying for probations. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators (Padua vs. People, G.R. No. 168546, July 23, 2008).

35. The child in conflict with the law may, after conviction and upon order of the court, be made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities in accordance with Section 51 of RA No. 9344 (People vs. Mantalba, G.R. No. 186227, July 20, 2011; People vs. Salcedo, GR No. 186523, June 22, 2011; People vs. Arpon, G.R. No. 183563, December 14, 2011, Justice De Castro).

36. Under Article 29 of RPC, a convicted recidivist is not entitled to a full or 4/5 credit of his preventive imprisonment. However, if the convict is a child, the applicable rule for crediting the period of commitment and detention is not Article 29 of RPC but Section 41, RA 9344. Under the said provision, the full time spent in actual commitment and detention of juvenile delinquent shall be credited in the services of his sentence (Atizado vs. People, G.R. No. 173822, October 13, 2010).

37. In exempting circumstance of minority under Section 6 of RA No. 9344, what is important is the chronological age of the accused. If the actual age of the child is 15 years old or under, he is exempt from criminal liability. In People vs. Roxas, G.R. No. 200793, June 04, 2014 - In determining age for purposes of exemption from criminal liability, Section 6 clearly refers to the age as determined by the anniversary of one’s birth date, and not the mental age.

           

38. In exempting circumstance of imbecility, what is important is the mental age of the accused. If the mental age of the accused is 2 years, he is an idiot; if his mental age is 7 years old, he is an imbecile (People vs. Butiong, G.R. No. 168932, October 19, 2011). An idiot or imbecile is exempt from criminal liability. If the mental age of the accused is 12 years old, he is feebleminded (People vs. Butiong, supra). A feebleminded accused is not an imbecile; hence, he is not exempt from criminal liability (People vs. Nunez, G.R. NO. 112429-30, July 23, 1997) but only entitled to mitigating circumstance of mental illness (People vs. Formigones, G.R. No. L-3246, November 29, 1950). In People vs. Roxas, supra, the chronological age of the victim is 18 years while his mental age is 9 years old. Exempting circumstance of minority cannot be appreciated since he is not a minor. His actual age is not below 18 years. Neither can the exempting circumstance of imbecility be appreciated. He is not an imbecile since his mental age is not 7 years or below.    

            39. There are two tests to determine the insane condition of the accused: (a) The test of cognition – whether there was a “complete deprivation of intelligence in committing the criminal act” (b) The test of volition – whether there was a “total deprivation of freedom of the will.” In the Bonoan case, schizophrenic accused, who acted under irresistible homicidal impulse to kill (volition test), was acquitted due to insanity. This is not anymore a good rule. Even if the mental condition of the accused had passed the volition test, the plea of insanity will not prosper unless it also passed the cognition test. The controlling test is cognition (People vs. Opuran, G.R. Nos. 147674-75, March 17, 2004). Accused will be convicted if he was not totally deprived of reason and freedom of will (People vs. Garchitorena, G. R. No. 175605, August 28, 2009 (Justice De Castro). Only when there is a complete deprivation of intelligence at the time of the commission of the crime should the exempting circumstance of insanity be considered (People vs. Bulagao, G.R. No. 184757, October 05, 201, Justice De Castro).

            If a person (such as sex maniac, homicidal maniac or kleptomaniac) had merely passed the volition test but not the cognition test, he will only be given the benefit of mitigating circumstance of illness. Diminution of freedom of the will is enough to mitigate the liability of the offender suffering from illness (See: People vs. Rafanan, Jr.   November 21, 1991, G.R. No. 54135).

            40. The absolutory cause of relationship, which includes step-relationship and in-laws relationship, applies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification. There are two views on whether the death of wife, which extinguishes marriage with the accused, dissolves his relationship by affinity with his mother-in-law for purpose of absolutory cause in swindling. The first holds that relationship by affinity terminates with the dissolution of the marriage, while the second maintains that relationship continues even after the death of the deceased spouse. The principle of pro reo or rule of lenity calls for the adoption of the continuing affinity view because it is more favorable to the accused (Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010).

41. Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him. It differs from entrapment which is the employment of ways and means in order to trap or capture a criminal. In instigation, the criminal intent to commit an offense originates from the inducer and not from the accused who had no intention to commit and would not have committed it were it not for the prodding of the inducer. In entrapment, the criminal intent or design originates from the accused and the law enforcers merely facilitate the apprehension of the criminal by using ruses and schemes. Instigation results in the acquittal of the accused, while entrapment may lead to prosecution and conviction (People vs. Espiritu, G.R. No. 180919, January 9, 2013).

42. A police officer’s act of soliciting drugs from appellant during the buy-bust operation, or what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-bust operation. Mere deception by the police officer will not shield the perpetrator, if the offense was committed by him free from the influence or instigation of the police officer (People vs. Espiritu, supra).

43. Surrender as a mitigating circumstance to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Voluntary surrender presupposes repentance (People vs. Tabarnero, G.R. No. 168169, February 24, 2010, Justice De Castro). The accused surrendered only after having been informed of the charge of rape against him or about two months from the commission of the alleged crime. He even denied the said charge upon his purported surrender. The alleged surrender, therefore, does not qualify as a mitigating circumstance (People vs. Salle, G.R. No. 181083, January 21, 2010, Justice De Castro).

44. A plea of guilty made after the prosecution had begun presenting its evidence cannot be considered voluntary since it was made only after the accused realized that the evidence already presented by the prosecution is enough to cause his conviction. It is not required that the prosecution must have presented all its evidence when the plea of guilty was made to negate the appreciation of mitigating circumstance of voluntary confession (People vs. Montinola, G.R. No. 131856-57, July 9, 2001, En Banc).

45. Four days after the victims attempted on the virtue of his wife, accused killed them. The period of four days was sufficient enough a time within which accused could have regained his composure and self-control. Hence, passion should not be appreciated (People vs. Rebucan, G.R. No. 182551, July 27, 2011, Justice De Castro).

In the case of U. S. vs. Hicks (14 Phil., 217), the accused therein and a woman illicitly lived together. Afterwards, the woman separated from him and lived with another man. Defendant, enraged by her conduct killed her. This Court held that no mitigating circumstance of passion and obfuscation was present, not even loss of reason and self-control produced by jealousy as alleged by the defense, inasmuch as 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. In sum, to mitigate the liability of the offender, passion must arise from lawful sentiment.

An employer reprimanded an employee for doing an immoral act. Such reprimand cannot be a source of passion, which will mitigate the liability of the employer in committing a crime against his employer. Passion is not mitigating if the accused was actuated more by a spirit of lawlessness and revenge against his employer (People vs. Caliso, G.R. No. 37271, July 1, 1933 En Banc).

Not illiteracy alone but also lack of sufficient intelligence and knowledge to fully realize the consequence of his criminal act are necessary to invoke the benefit of mitigating circumstance of lack of instruction and education (People vs. Gorospe, G.R. Nos. 10644-45, February 19, 1959). Where it was established insufficiency of intelligence on the part of the accused to fully comprehend the consequence of his crime, mitigating circumstance of instruction and education shall be appreciated even if he received instruction or education in school.

 

46. It is now a requirement that the aggravating or qualifying circumstances be expressly and specifically alleged in the complaint or information. Otherwise, they cannot be considered by the trial court in its judgment, even, if they are subsequently proved during trial (Sombilon, Jr. vs. People, G.R. No. 175528, September 30, 2009, Justice De Castro). This procedural rule has a retroactive application because of pre reo (People vs. Dadulla, G. R. No. 172321, February 9, 2011).

47. There is special aggravating circumstance of “exploitation of children” if the accused makes use, takes advantage of, or profits from the use of children, or abuses his authority over the child or takes advantage of the vulnerabilities of the child with abuse of confidence or induce, threaten or instigate the commission of the crime (Section 20-C of RA No. 9344 as amended by RA 10365). Exploitation of children for the commission of crimes is a special aggravating circumstance, where the penalty shall be applied in its maximum period regardless of the presence of mitigating circumstances. Under Article 14 (20) of RPC on the ordinary aggravating circumstance of committing crime with the aid of a minor, the age of the child must be under 15 years. But in the special aggravating circumstance of exploitation of child, the age of the minor must be under 18 years.

48. Abuse of superior strength is present whenever there is inequality of forces between the victim and the aggressor, considering that a situation of superiority of strength is notoriously advantageous for the aggressor and is selected or taken advantage of by him in the commission of the crime (People vs. Garchitorena, G. R. No. 175605, August 28, 2009, Justice De Castro). The victim need not be completely defenseless in order for the said aggravating circumstance to be appreciated (People vs. Paling, G.R. No. 185390 March 16, 2011). If the victim is completely defenseless, treachery should be appreciated (People vs. Rebucan, G.R. No. 182551, July 27, 2011). When the circumstance of abuse of superior strength concurs with treachery, the former is absorbed in the latter (People vs. Dadao, et.al., G.R. No. 201860, January 22, 2014, Justice De Castro).

49. The essence of evident 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 a space of time sufficient to arrive at a calm judgment (People vs. Alinao, GR No. 191256, September 18, 2013). If the offender premeditated the killing of a specific person, evident premeditated will not be appreciable if he killed another person due to mistake of blow, or mistake of identity (People vs. Mabug-at, 51 Phil., 967; People us. Dueño, G.R. No. L-31102, May 5, 1979).

50. 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 (People vs. Enoja, GR No. 204894, March 10, 2014). In band, the armed members thereof, who are at least four, must all be principals by direct participation who acted together in the execution of the acts constituting the crime (People vs. Lozano, September 29, 2003, G.R. Nos. 137370-71).

51. Differences of recidivism, quasi-recidivism, reiteracion and habitual delinquency:

(a) Recidivism and reiteration are ordinary aggravating circumstances, the presence of any of which will require the application of the penalty for the subject crime in its maximum period unless it is off-set by mitigating circumstance. Quasi-recidivism is special aggravating circumstance, the presence of which will require the application of the penalty for the subject crime in its maximum period regardless of the presence of mitigating circumstance. Habitual delinquency is an extraordinary or special aggravating circumstance, the presence of which will require the imposition of additional penalty for the subject crime. This is not subject to the off-set rule. 

(b) In recidivism, the previous crime, and the subject crime are embraced in the same Title of the RPC. In quasi-recidivism, the nature of the previous crime and subject crime is not material. In reiteration, the penalty for the previous crime is equal or greater than that for the subject crime or the penalty for the first two previous crimes is lighter than that for the subject crime. In habitual delinquency, the previous crimes and subject crime must be serious or less serious physical injuries, theft, robbery, estafa or falsification of document.

(c) In recidivism, the accused was being tried of the subject crime when he was convicted of the previous crime by final judgment. In quasi-recidivism, the accused committed the subject crime before beginning to serve or while serving his sentence for the previous crime. In reiteration, the accused committed the subject crime after serving his sentence for previous crime/s. In habitual delinquency, the accused committed the second crime within 10 years after conviction or release of the first crime; then, he committed the third crime within 10 years after conviction or release of the second crime; and so on and so forth.

52. If accused claims intoxication as mitigating circumstance, he must establish that his intoxication was not habitual or subsequent to the plan to commit the crime and that he took such quantity of alcoholic beverage, prior to the commission of the crime, as would blur his reason (People vs. Fontillas, G.R. No. 184177, December 15, 2010, Justice De Castro). If the prosecution claims intoxication as aggravating circumstance, it must establish that the intoxication is habitual or intentional (People vs. Patelan, G.R. No. 182918, June 6, 2011). To aggravate the liability of the accused, it is not necessary that degree of intoxication must have impaired the will power of the accused (People vs. Ga, G.R. No. 49831, June 27, 1990).  Failure of the prosecution or the accused to do so, the circumstance of intoxication is neither aggravating nor mitigating.

53. Light felony is punishable except when the accused is merely an accessory (Article 16) or when it is at the attempted or frustrated stage unless it is a crime against property or person (Article 7).

54. If there is conspiracy, conspirators are liable as principals regardless of the time and nature of participation. It is immaterial whether accused acted as a principal or as an accomplice because the conspiracy and his participation therein have been established.  In conspiracy, the act of one is the act of all and the conspirators shall be held equally liable for the crime (People vs. Siongco, G.R. No. 186472, July 5, 2010). If there is community of design, the participator, who knows and concurred in the criminal design of the principal by direct participation, is liable as accomplice or principal by indispensable cooperation depending upon the nature of participation. If the previous or simultaneous participation consist of supplying material or moral aid in an efficacious way, he is liable as accomplice. If the participation is indispensable in the commission of the crime, he is liable as principal by indispensable cooperation. 

A, B and C were walking when they saw X, mortal enemy of A. A suddenly shot X. While X is dying, B and C also shot him. There is no conspiracy in this case since there is no prior agreement among A, B and C to kill X. However, even without conspiracy they are liable as principals by direct participation on the basis of their independent acts of shooting X.

A for consideration induced B to kill X. Instead of killing X, B induced C to kill X. C killed X. C is liable for murder qualified by the circumstance of reward, promise or consideration as principal by direct participation while B is liable as principal by inducement. However, A is not liable as principal by inducement because C killed X not because of the inducement of A, but by reason of the inducement of B.

55. Conspirators vs. accomplice – Conspirators agreed and decided to commit the crime; in sum, their collective responsibility is based on conspiracy. Accomplices acquire knowledge and concur with the criminal design of the conspirators after the latter reaches a decision; in sum, their quasi-collective responsibility is based on community of design. Conspirators to be held liable on the basis of collective responsibility must perform an act in furtherance of conspiracy such as providing active participation or moral assistance or exerting moral ascendency. Accomplices must supply material or moral aid an efficacious way. The nature and time of participation of conspirators is not important. The participation of the accomplices must be previous or simultaneous to the commission of the crime but it must not be indispensable to the commission thereof; otherwise, they are liable as principal by indispensable cooperation.   

56. When there is doubt as to whether accused is guilty as principal or accomplice, it should be resolved in favor the "milder form of responsibility." He should be given the benefit of the doubt and can be regarded only as an accomplice (People vs. Eusebio, G.R. No. 182152, February 25, 2013). Accused came to the resort thinking it was a swimming party. However, she acquired knowledge of the criminal design of the kidnappers when she saw victim being guarded in the room. She concurred with the criminal design of the kidnapper as shown by the fact that she chose to keep quiet and did not report the matter to the police authorities. She gave the kidnappers moral support by spending the night at the cottage. Her presence and company were not indispensable and essential to the perpetration of the kidnapping for ransom; hence, she is only liable as an accomplice. Moreover, in case of doubt, the participation of the offender will be considered as that of an accomplice rather than that of a principal (People vs. Gambao, GR No. 172707, October 01, 2013).

57. The accused owned the safehouse, where the kidnapped victim was detained and assisted the kidnappers such as bringing foods to the victim. Ownership of the safehouse and their participations reasonably indicate that they were among those who at the outset planned the kidnapping. Providing a safehouse is an evidence of conspiracy since the place where the victim is to be detained is a primary consideration in planning to commit kidnapping. Although their participation pertain to those committed by mere accomplices, they are liable as principals because implied conspiracy is shown. If there is conspiracy, the extent of participation is not anymore material (People vs. Salvador, GR No. 201443, April 10, 2013).

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

59. Actual knowledge that the property has been derived from the proceeds of theft or robbery is not required. The accused can still be held liable for fencing if he should have known that the property is stolen taken into consideration the attending circumstances such as (1) the price of the property is so cheap; (2) expensive jewelry is being offered for sale at midnight in a street; (3) accused knew that the car he bought was not properly documented (Dimat vs. People, supra); or (4) new tires are being peddled in the streets by an unknown seller (Ong vs. People, GR No. 190475, April 10, 2013). Furthermore, mere possession of stolen property shall be prima facie evidence of fencing (Section 6 of PD No. 1612).

60.  A person who assists a criminal to escape is liable as an accessory provided that: (1) the criminal being assisted must be a principal in the commission of the crime; (2) the crime committed by the criminal being assisted is treason, parricide, murder, or an attempt to take the life of the Chief Executive; if other crime is committed, it is important that there is abuse of public position or the criminal is a habitual delinquent; (3) the accessory and criminal being assisted are not related because relationship is an exempting circumstance. If any of the three conditions mentioned is not present, the one assisting the criminal to escape is not liable as accessory. But he is liable as principal in the crime of obstruction of justice under PD No. 1829. To be held liable for obstruction of justice, what is important is that the accused assists “any person” to escape although the former knows, or has reasonable ground to believe that the latter has committed “any offense.” Relationship is not an exempting circumstance in obstruction of justice.

61. Credit is full if the detention prisoner executed detainee’s manifestation, which is defined as a written declaration of a detained prisoner, with the assistant of a counsel, stating his refusal to abide by the same disciplinary rules imposed upon a convicted prisoner for the purpose of availing the full credit of the period of his preventive imprisonment. Credit is 4/5 if the detention prisoner executed detainee’s waiver, which is defined as a written declaration of a detained prisoner, with the assistant of a counsel, stating his refusal to abide by the same disciplinary rules imposed upon a prisoner convicted by final judgment. There is no credit if the accused is recidivist; has been convicted previously twice or more times of any crime; or has failed to surrender voluntarily before a court of law upon being summoned for the execution of his sentence. Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted from thirty (30) years (Article 29 of RPC as amended by RA No. 10592 and its implementing rules).

62. If the period of preventive imprisonment is equal to the imposable maximum imprisonment of the offense charged, the detention prisoner shall be released immediately without prejudice to the continuation of the case, except for the following: 1) recidivist; 2) habitual delinquent; 3) escapee; and 4) person charged with heinous crimes. Such period shall include good conduct time allowance (Article 29 of RPC as amended by RA No. 10592).

63. If detention or convicted prisoner escapes during the calamity, and subsequently surrenders within 48 hours from the time the President announces the passing away of such calamity, he is entitled to 1/5 special time allowance for loyalty under Article 98 of RPC as amended by RA No. 10592; if the convicted prisoner did not surrender within the period, he is liable for evasion of sentence under Article 158 of RPC punishable by penalty equivalent to one-fifth of the time still remaining to be served under the original sentence, which in no case shall exceed six months; if the detention prisoner did not surrender within the period, he is not liable for evasion of sentence. Only convicted prisoner can commit evasion of service of sentence because a detention prisoner is not serving sentence, which he can evade.

In case of the prisoner chose to stay in the place of his confinement notwithstanding the existence of a calamity, he is entitled to 2/5 special time allowance for loyalty (Article 98 of RPC as amended by RA No. 10592). A prisoner who did not escape despite of the calamity manifests a higher degree of loyalty to the penal system than those who evaded their sentence but thereafter gives themselves up upon the passing away of the calamity. Hence, prisoners, who did not escape, are entitled to a higher special time allowance. 

64. In De Castro vs. People, G.R. No. 171672, February 02, 2015, the court should prescribe the correct penalties in complex crimes in strict observance of Article 48 of the Revised Penal Code. In estafa through falsification of commercial documents, the court should impose the penalty for the graver offense in the maximum period. Otherwise, the penalty prescribed is invalid, and will not attain finality.

65. The indeterminate sentence law is not applicable to: (1) treason, conspiracy or proposal to commit treason or misprision of treason; (2) rebellion; (3) sedition; (3) espionage; (4) piracy; (5) habitual delinquents; (5)  those who have escaped from confinement or evaded sentence; (6) those who violated the terms of conditional pardon; (7) penalty of imprisonment the maximum term of which  does not exceed one year; (8) death penalty or life-imprisonment [Section 2 of Act No. 4103] or reclusion perpetua [RA No. 9346]; and (9) use of trafficked victim [Section 11 of RA No. 9208 as amended). Under the Islaw, in imposing a “prison sentence” for an offense, the court shall sentence the accused to an indeterminate sentence. Hence, Islaw is not applicable in imposing “non-prison sentence” such as destierro, disqualification or rehabilitation for use of dangerous drugs.

The probation law is not applicable to: (1) a penalty, the maximum term of which is more than more than six years [Section 9 of PD 968] unless it is imposed to possession or use of dangerous drugs committed by first time minor offender [Section 70 of RA No. 9165]; (2) offense against the security of the State such as treason, or violation of neutrality; (3) crimes against public disorder such as rebellion, direct assault or alarm and scandal; (4) those who have previously been convicted by final judgment of a light offense; (5) who have been once on probation [Section 9 of PD 968] and (6) drug trafficking or pushing (Section 24 of RA No. 9165).

          

66. Under rules for application of divisible penalties (Article 64 of RPC), if there are two or more mitigating circumstances and not aggravating circumstances, the penalty shall be graduated one degree lower. This is called as special mitigating circumstance.

Accused was found guilty of parricide punishable by the penalty of reclusion perpetua to death. Applying rules for application of indivisible penalties (Article 63), the lesser penalty of reclusion perpetua shall be applied if there are two mitigating circumstance. The penalty cannot be lowered to reclusion temporal, no matter how many mitigating circumstances are present. The special mitigating circumstance is found in rules for application of divisible penalties (Article 64), which is not applicable because the penalty is not divisible (People vs. Takbobo, G.R. No. No. 102984, June 30, 1993).

           

The Takbobo principle is also applicable if the penalty prescribed by law for the crime committed is a single indivisible penalty such as reclusion perpetua. Applying Article 63, the penalty of reclusion perpetua shall be applied by the court regardless of mitigating or aggravating circumstances that may have attended the commission of the deed. The special mitigating circumstance is found in rules for application of divisible penalties (Article 64), which is not applicable because the penalty is not divisible.

If there are three mitigating circumstance and one aggravating circumstance, special mitigating circumstance for purpose of graduating the penalty shall not be appreciated. Although there are two remaining mitigating circumstances after applying the off-set rule, the penalty shall not be lowered by one degree because the appreciation of special mitigating circumstance requires that there is no aggravating circumstance.   

            67. For purposes of graduating penalty, the penalty of death is still the penalty to be reckoned with. RA No. 9346, which prohibits the imposition of death penalty, does not exclude death penalty in the order of graduation of penalties. In qualified rape, the penalty for accomplice is reclusion perpetua, the penalty next lower in degree than death prescribed for the crime (See: People vs. Jacinto, G.R. No. 182239, March 16, 2011).

68. If the penalty prescribed by law is reclusion temporal (e.g. penalty for homicide) and there is one mitigating circumstance, this penalty shall be imposed in its minimum period. In such case, the indeterminate minimum penalty shall be fixed anywhere within the full range of prision mayor (6 years and 1 day to 12 years), which is the penalty next lower in degree, while the indeterminate maximum penalty shall be fixed anywhere within the range of reclusion temporal in its minimum period (12 years and 1 day to 14 years and 8 months). Hence, the court may sentence the accused to suffer an indeterminate penalty of: 6 years and 1 day of prision mayor as minimum to 12 years and 1 day of reclusion temporal as maximum (Sementela vs. People, G.R. No. 107699, March 21, 1997); or 8 years and 1 day of prision mayor as minimum to 14 years of reclusion temporal as maximum (People vs. Placer, G.R. No. 181753, October 09, 2013)

If the penalty reduced by degree is prision mayor (e.g, penalty for homicide committed by minor) and there is one mitigating circumstance, this penalty shall be imposed in its minimum period. In such case, the indeterminate minimum penalty shall be fixed anywhere within the full range of prision correccional (6 months and 1 day to 6 years), which is the penalty next lower in degree, while the indeterminate maximum penalty shall be fixed anywhere within the range of prision mayor in its minimum period (6 years and 1 day to 8 years). Hence, the court may sentence the accused to suffer an indeterminate penalty of: 6 years of prision correccional as minimum to 8 years of prision mayor as maximum (Pado vs. People, G.R. No. 176609, December 18, 2008); or 4 years, 9 months and 11 days of prision correccional as minimum to 8 years of prision mayor as maximum (Veranda vs. People, G.R. No. 58637, November 16, 1981).

Only ordinary aggravating and mitigating circumstances are subject to the offset rule. Privileged mitigating circumstance of minority cannot be offset by ordinary aggravating circumstance (Aballe vs. People, G.R. No. L-64086, March 15, 1990). If privileged mitigating circumstance and ordinary aggravating circumstance attended the commission of felony, the former shall be taken into account in graduating penalty; the latter in applying the graduated penalty in its maximum period (People vs. Lumandong, GR NO. 132745, March 9, 2000, En Banc). Quasi-recidivism is a special aggravating circumstance and cannot be offset by a generic mitigating circumstance (People vs. Macariola, G.R. No. L-40757 January 24, 1983). The circumstance of treachery, which qualifies the killing into murder, cannot be offset by a generic mitigating circumstance voluntary surrender (People vs. Abletes and Pamero, GR NO. L-33304, July 31, 1974).

            If the penalty for possession of dangerous drugs is 12 years and 1 day to 20 years of imprisonment, the court shall sentence the accused to an indeterminate sentence the maximum of which shall not exceed 20 years while the minimum shall not be less than 12 years and 1 day. Thus, the court can sentence the accused to suffer 15 years of imprisonment as minimum to 18 years as maximum. The court cannot impose a straight penalty of 12 years and 1 day since the application of indeterminate sentence law is mandatory (Asiatico vs. People, G.R. No. 195005, September 12, 2011; Escalante vs. People, G.R. No. 192727, January 9, 2013).

69. In case of non-payment of fine by reason of insolvency, the convict shall be subject to a subsidiary imprisonment at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court (Article 39 of RPC as amended by RA No. 10159.

70. Article 70 of RPC is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed. This provision speaks of "service" of sentence”. Nowhere in the article is anything mentioned about the "imposition of penalty". It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum of which is forty years (In People vs. Escares, G.R. No. L-11128-33, December 23, 1957; Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987). Thus, the court cannot dismiss criminal cases in excess of three on the basis of three-fold rule.

Under the three-fold rule, in serving multiple sentences the period of imprisonment that convict must serve must neither be more than 4o years nor exceed threefold the length of time corresponding to the most severe of the penalties imposed upon him. Example: A was convicted of 10 counts of slight physical injuries and sentence to suffer 30 days of arresto menor for each. He was also convicted of less serious physical injuries and sentence to suffer 2 months of arresto mayor. The total duration of the penalties imposed on him is 1 year. The most severe penalty imposed on him is 2 months. Thus, threefold the length of time corresponding to the most severe of the penalties is 6 months. “A” will be imprisoned for 6 months because of the three-fold rule.

71. Reelection to public office is not provided for in Article 89 of RPC as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection (Oliveros vs. Judge Villalulz, G.R. No.  L-34636, May 30, 1974, En Banc). But a re-elected public official cannot be removed for administrative offense committed during a prior term, since his re-election to office operates as a condonation of his misconduct to the extent of cutting off the right to remove him therefor (Aguinaldo vs. Santos, G.R. No. 94115 August 21, 1992). However, the Supreme Court in a case involving Makati Mayor Junjun Binay has recently abandoned the doctrine of condonation of administrative offense by reason of reelection because of the constitutional provision on public accountability.

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

            In theft case or estafa through falsification of public documents, there was no contractual relationship or bilateral agreement which can be modified or altered by the parties. Hence, the principle of novation as a defense is not applicable (People vs. Tanjutco, G.R. No. L-23924, April 29, 1968; Milla vs. People, G.R. No.  188726, January 25, 2012).

73. In People v. Bayotas, the Court laid down the rules in case the accused dies prior to final judgment: 1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. 2. The claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than crime.  3. Where the civil liability survives, an action for recovery therefor may be pursued but only by way of filing a separate civil action, which may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based. 4. The statute of limitations on the civil liability arising from contract, quasi-contract, quasi-delict or law is deemed interrupted during the pendency of the criminal case (People vs. Amistoso, GR No. 201447, August 28, 2013).

74. Article 91 of RPC provides the rule on computation of prescription of offenses. Under this provision, the period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago.

Generally, the prescriptive period shall commence to run on the day when the crime is committed.  An exception to this rule is the "blameless ignorance" doctrine, under which prescription runs only upon discovery of the crime by offended party or State through a person in authority or his agent.  In other words, the courts would decline to apply the statute of limitations where the state through person in authority or its agent, and private complainant does not know, or has no reasonable means of knowing the existence of a crime. In sum, the State and complainant should not be blame for failure to institute the case immediately after the commission of the crime if he is ignorant of such commission. This principle is incorporated in in Section 2 of Act 3326 and Article 91 of RPC. Considering that during the Marcos regime, no person would have dared to assail the legality of the transactions involving cronies such as behest loan, it would be unreasonable to expect that the discovery of the unlawful transactions was possible prior to 1986 (Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11, 2013). Hence, the prescriptive period for violation of RA No. 3019 commenced from the date of its discovery in 1992 after the Committee made an exhaustive investigation (Presidential Ad hoc fact-finding committee vs. Hon. Desierto, G.R. No. 135715, April 13, 2011).

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

75. In the crime of falsification of a public document involving a deed of sale, which was registered with the Registry of Deeds, the rule on constructive notice can be applied in the construction of Article 91. Hence, the 10-year prescriptive period of the crime shall have to be reckoned from the time the notarized deed of sale was recorded in the Registry of Deeds (People vs. Reyes, G.R. No. 74226, July 27, 1989). Constructive notice rule is not applicable to registration of bigamous marriage in the Office of the Civil Registrar. Furthermore, the law on registration of document involving real property specifically provides the rule on constructive notice. On the other hand, the law on Civil Registry or the Family Code, which governed registration of marriage do not provide rule on constructive notice; hence the period of prescription commences to run on the date of actual discovery of the bigamous marriage (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14, 1994).

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

77. The running of prescription for offense under special law will be interrupted only upon institution of “proceedings”. There is institution of executive proceedings when a complaint for preliminary investigation is filed with the office of the city prosecutor or ombudsman. There is institution of judicial proceeding when a complaint or information is filed in court.

If the crime is punishable by a special law, the proceeding is either executive of judicial (People vs. Pangilinan, G.R. No. 152662, June 13, 2012). Hence, the running of the prescription of offense punishable under special law such as violation of BP No. 22, Revised Securities Act and the Securities or RA No. 3019 shall be interrupted upon filling of complaint for preliminary investigation (Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008; SEC vs. Interport Resources Corporation, G.R. No. 135808, October 6, 2008; Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11, 2013. However, preliminary investigation for violation of RA No. 3019 by alleged cronies of Marcos not involving ill-gotten wealth conducted by PCGG is void ab initio and could not interrupt the 15-year prescriptive period for violation of RA No. 3019. The investigatory power of the PCGG extended only to alleged ill-gotten wealth cases. (People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29, 2009).

If the crime is punishable by an ordinance, the proceeding is judicial (Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992). Hence, the filing of complaint involving violation of ordinance for preliminary investigation will not interrupt the running of 2-month prescription. The provision in the Rules on Criminal Procedure regarding the interruption of prescription by institution criminal action is not applicable to violation of ordinance because case involving this crime is covered by the Rules on Summary Procedure (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, October 7, 2013).

78. In seduction, abduction, and acts of lasciviousness, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon the offender, co-principals, accomplices and accessories (Article 334 of RPC). In rape, subsequent marriage between the offender and offended party shall extinguish the criminal action or penalty with respect to the offender (Article 266-C of RPC as amended by RA 8353). But this rule does not extend to co-principals, accomplices and accessories.

79. Discharge of accused is not a mode of extinguishing criminal liability. One of the hallmarks of the Probation Law is precisely to “suspend the execution of the sentence,” and not to replace the original sentence with another. Compliance with the conditions is not equivalent to services of sentences. The criminal liability remains but the sentence will not be served (Villareal vs. People, G.R. No. 151258, December 01, 2014). The grant of probation suspends the execution of the principal penalty of imprisonment and the accessory penalties. Thus, the probationer is not disqualified from running for a public office (Villareal vs. People, supra). However, grant of probation shall not suspend the payment of civil liability (Budlong, vs. Palisok, GR No. 60151, June 24, 1983). The trial court that convicted and sentenced the accused has authority to grant probation (Villareal vs. People, supra).

While accused did not file an appeal before applying for probation, he assailed the validity of the conviction in the guise of a petition supposedly assailing the denial of probation.  In so doing, he attempted to circumvent P.D. No. 968, which seeks to make appeal and probation mutually exclusive remedies (Almero vs. People, GR No. 188191, March 12, 2014).

          

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

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

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

80. Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed, nor be treated as separate crimes, but shall be punished as a special complex crime (People vs. Mercado, G.R. No. 116239, November 29, 2000; People vs. Ramos, G.R. No. 118570, October 12, 1998; People vs. Larranaga, 138874-75, February 3, 2004; People vs. Montanir, GR No. 187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949, July 23, 2014). However, kidnapping is a crime against liberty. Hence, where there is no actual detention or intent to deprive liberty, the case of Mercado will apply. The crime committed is not kidnapping with homicide but murder. Demand for ransom will not convert the crime into kidnapping.

In Mercado case, the victim was kidnaped for purpose of killing him. There is intent to deprive liberty since he was brought to a safehouse in Tanay before bringing him in Morong for execution. The crime committed is kidnapping with homicide. In People vs. Estacio Jr., G.R. No.  171655, July 22, 2009, the victim was kidnaped in Quezon City for purpose of killing him. There is no intent to deprive liberty since he was killed at the precise moment that he was brought at the locus criminis in Bulacan. The crime committed is murder since the deprivation of liberty is just incidental.  

81. If kidnapping is a necessary means to commit frustrated murder, special complex crime of kidnapping with frustrated homicide is not committed. Homicide as a component of special complex crime must be at the consummated stage. In this situation, the crime committed is complex crime of kidnapping and serious illegal detention with frustrated murder (See: People vs. Roxas, GR No. 172604, August 17, 2010)

            82. Killing the victim with qualifying circumstance constitutes murder. But if the accused raped the victim or inserted toothbrush into her anal orifice while she was dying, the bestiality shall be considered as ignominy or cruelty (People vs. Laspardas, G.R. No. L-46146, Oct. 23, 1979; People vs. Bernabe,  G.R. No. 185726, October 16, 2009, Justice De Castro). The crime is not rape with homicide or rape through sexual assault with homicide since the original design is kill the victim and not to rape or sexually assault her.

83. Homicide committed on occasion or by reason of rape is a special complex crime. The phrase “by reason of the rape” obviously conveys the notion that the killing is due to the rape, which is the crime the offender originally designed to commit. The victim of the rape is also the victim of the killing. In contrast, the phrase “on the occasion of the rape” refers to a killing that occurs immediately before or after, or during the commission of rape, where the victim of the homicide may be a person other than the rape victim for as long as the killing is linked to the rape, became evident. Thus, killing the first victim to facilitate the rape of the second victim constitutes rape with homicide (People vs. Villaflores, G.R. No.  184926, April 11, 2012). Treachery will not qualify the killing into murder since there is no such special complex crime of rape with murder in the book of statutes. Treachery shall be regarded as ordinary aggravating circumstance (People vs. Laog, G.R. No. 178321, October 5, 2011).

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

85.  Composite crime or special complex crime vs. complex crime - (1) In a composite crime, the composition of the offenses is fixed by law; In a complex or compound crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the necessary means to commit the other; (2) For a composite crime, the penalty for the specified combination of crimes is specific; for a complex or compound crime, the penalty is that corresponding to the most serious offense, to be imposed in the maximum period; and (3) A light felony that accompanies a composite crime is absorbed; a light felony that accompanies the commission of a complex or compound crime may be the subject of a separate information (People vs. Villaflores,  G.R. No.  184926, April 11, 2012).

86. The single act of rolling the hand grenade on the floor of the gymnasium which resulted in the death of victims constituted a compound crime of multiple murders (People vs. Mores, GR No. 189846, June 26, 2013, Justice De Castro). When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance.  Since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance (People vs. Comadre, et al., G.R. No. 153559, June 8, 2004). The single act of running over the victims with a van constitutes compound crime of multiple murders (People vs. Punzalan, Jr., G.R. No. 199892, December 10, 2012 (Justice De Castro).

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

87. When the elements of both robbery by means of violence and intimidation and robbery by using force upon thing are present, the crime is a complex one under Article 48 of RPC. Hence, the penalty for robbery in inhabited house shall be imposed in its maximum period (People vs. Napolis, G.R. No. L-28865, February 28, 1972; People vs. Disney, G.R. No. L-41336, February 18, 1983, En Banc and Fransdilla vs. People, GR No. 197562, April 20, 2015).

88. The body of the information charged the accused of compound crime with murder and attempted murder since two victims were hit by a single shot. The evidence shows that murder and attempted murder are separate crimes since the two victims were hit by several shot. Under the variance rule, if the crime alleged in the information varies with the crime proven with evidence, the accused shall be convicted of the crime alleged or proven whichever the lesser. Thus, accused shall be convicted of complex crime, which is lesser compared to two crimes (People vs. Bernardo, GR No. 198789, June 03, 2013).

89. If there are several acts involved in killing several victims, there is no compound crime, which requires a single act producing several crimes (People vs. Toling, G.R. No. L-27097, January 17, 1975). There are two exceptions: the Lawas principle and Abella principle.          

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

Under People vs. Abella, G.R. No. L-32205 August 31, 1979, if several prisoners killed fellow prisoners pursuant to a single criminal purpose to take revenge, they shall be held liable for compound crime of multiple murders. Conspiracy animates several persons to commit crimes under a single criminal purpose; The “single purpose rule” was adopted in consideration of the plight of the prisoners; hence, it only applicable if the offenders committed the crimes in prison against their fellow prisoners (People vs. Pincalin, G.R. No. L-38755, January 22, 1981; People vs. Nelmida, G.R. No. 184500, September 11, 2012).

The killing of soldiers in the Mamasapano incident will not constitute compound crime of multiple murders. Since there is implied conspiracy as shown by the concerted actions in killing soldiers, the Lawas doctrine, which treats killings under a single criminal impulse as a compound crime, is not applicable. Since the killings were not perpetrated by prisoners against fellow prisoners, the Abella doctrine, which treats killings under a single criminal purpose as a compound crime, is not applicable.

90.       If the accused committed robbery, but thereafter, they detained the victims to forestall their capture by the police, the crime committed is robbery only. Robbery absorbs kidnapping and serious illegal detention. The detention was only incidental to the main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense (People vs. Astor, G.R. Nos. L-71765-66, 29 April 1987). If the accused committed robbery, but thereafter, they detained the victims to demand additional money, and later forestall their capture by the police, the crime committed is complex crime of robbery through kidnapping and serious illegal detention. The detention was availed of as a means of insuring the consummation of the robbery. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. Hence, the Astor principle is not applicable (People vs. Salvilla, G.R. No. 86163 April 26, 1990).  If the accused committed robbery by band, but thereafter, they took one of the victims and detained him for seven days in another place for purpose of demanding ransom, they are liable of separate crimes of robbery by band and kidnapping for ransom (People vs. Basao, G.R. No. 189820, October 10, 2012, Justice De Castro).

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

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

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

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

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

            If the accused was molesting the victim immediately upon abduction, that is proof that abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by accused, the victim became dizzy and thereafter, she passed out. When she regained consciousness, she notices that she and accused are naked inside a room. She was raped and detained for 6 days. The crime committed is rape through forcible abduction (People vs. Amaro, G.R. No. 199100, July 18, 2014).

            92. Several acts performed separately during a period of time under a single criminal intent in violation of penal provision constitute a continued crime. Thus, several acts of taking away by force the money and valuables of the employees working in Energex gasoline station committed under a single criminal intent to commit robbery in that place in violation of a single penal provision (Article 294 of RPC) constitute a continued crime of robbery (People vs. De Leon, GR No. 179943, June 26, 2009). Accused inserted his penis thrice into the private part of victim for purpose of changing position.  The three penetrations motivated by a single criminal intent to satisfy his lust in violation of single penal provision (Article 266-A of RPC) constitute a continued crime of rape (People vs. Aaron, G.R. Nos. 136300-02, September 24, 2002). Accused inserted his penis thrice into the private part of victim for purpose of resting for five minutes. He satisfied his lust every time he would withdraw his penis to rest. Since the three penetrations were motivated by separate three intents to satisfy his lust, three separate crimes of rape are committed (People vs. Lucena, GR No. 190632, February 26, 2014).

            If the accused committed the first criminal act without foreknowledge that he will commit the second, the acts are not constitutive of a continued crime since the criminal acts could not be said to have been committed under a single criminal intent or impulse. “X” as punong barangay was angered when he discovered a tap from the main line of the public water tank. On separate occasions, “X” threatened to kill and crack the skulls of “A”, “B”, and “C”, who suspected to be responsible for the tapping of water line. There is no continued crime since the three crimes of grave threat were not committed under a single criminal impulse. “X” has no foreknowledge that will chance upon the second and third victims at the time he was committing the first threat. Several threats can only be considered as continued crime if the offender threatened three individuals at the same place and at the same time (Paera vs. People, G.R. No. 181626, May 30, 2011).

            93. In unlawful arrest, the private individual (or public officer in its private capacity) arrests or detains the victim without reasonable ground or legal authority for purpose of delivering him to the proper judicial authority. In arbitrary detention, the public officer, who has authority to make arrest, detains the victim without legal grounds (People vs. Bringas G.R. No. 189093, April 23, 2010) in pursuit of this authority (People vs. Santiano, G.R. No. 123979,   December 3, 1998). The fact alone they are police officers would not exempt them from the criminal liability for kidnapping instead of arbitrary detention. Taking the prisoner to a secluded place constitutes illegal detention. Arbitrary detention is not committed since the accused did not commit the act in furtherance of official function or in the pursuit of authority vested in them. In sum, they committed the act in their purely private capacity (People vs. Santiano, supra).

94. In evasion of service of sentence, the accused must be a convicted prisoner and not merely a detention prisoner. In delivery of prisoner from jail, the person, who escaped through the help of the accused, is either a detention prisoner or convicted prisoner. In infidelity in the custody of prisoner, the person, who escaped in connivance with or consent of or through negligence of the accused-custodian, is either a detention prisoner or convicted prisoner.

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

            95. The elements of Infidelity in the Custody of Documents under Article 226 of the RPC are: (1) The offender must be a public officer; (2) There must be a document removed, destroyed or concealed; (3) The document destroyed or removed must be entrusted to such public officer by reason of his office; and (4) Damage or prejudice to the public interest or to that of a third person must be caused by the removal, destruction or concealment of such document (Zapanta vs. People, GR No. 192698-99, April 22, 2015). Differences between infidelity in the custody of document and estafa under Article 315 (3) (c) of RPC: (1) In both crimes, the offender removed, concealed or destroyed document; (2) in infidelity of the custody of document, the offender is a public officer entrusted with the document; while in estafa, the offender is a private individual; (3) In estafa, intent to defraud is an element; but this is not element of infidelity in the custody of document.  

            96. Simple assault (such as punching) upon an agent of a person in authority (e.g. police officer) while engaged in the performance of duty constitutes simple resistance. The crime committed is not direct assault since intent to defy the law and its representative at all hazard, which is an indispensable element thereof, is lacking (U.S. vs. Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R. No. 13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226, November 17, 1933). But serious assault upon agent of a person in authority while engaged in the performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).

Simple assault (such as punching) upon a person in authority (e.g. mayor or chief of police) while engaged in the performance of duty constitutes qualified direct assault. Laying of hands upon a person in authority is a qualifying circumstance in Article 148 of RPC. The law does not distinguish between serious and simple “laying of hands” upon a person in authority as a qualifying circumstance. Hence, a simple laying of hands upon a person in authority constitutes qualified direct assault. The Tabiana principle is only applicable if the victim is an agent of a person in authority (U.S. vs. Gumban, G.R. No. 13658, November 9, 1918).

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

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

BP Blg. 873, which was enacted in 1985, has amended Article 152 of RPC by making a lawyer a person in authority while in the actual performance of their professional duties or on the occasion of such performance. The intention of the lawmakers is that their status as persons in authority remains even the assault is committed outside the court room as long as it is perpetrated by reason of the performance of their professional duties. (see: Records of the Batasan, Volume Four, 1984-1985).

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

97. Making untruthful statement is the actus reus in perjury and falsification. The difference however lies on the nature of document. If the document is an affidavit where the law requires oath such as affidavit of complaint or verified petition, making an untruthful statement is perjury. If the document is one where there is an implied or express obligation to disclose the truth such as community tax certificate, PDS, or contract of sale, making an untruthful statement constitutes falsification.

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

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

Person cannot be held liable for perjury involving a complaint affidavit for theft based on the execution of affidavit of desistance. There is no perjury solely on the basis of two contradictory statements. There must be further evidence that will show which of the two sworn statements is false (U.S. vs. Capistrano 40 Phil. 902).

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

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

98. When the offender commits falsification of public, official or commercial document as a necessary means to commit malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934),  estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009, Justice De castro, Tanenggee vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs. Salonga, G.R. No. 131131, June 21, 2001), the crime committed is complex crime proper under Article 48 of RPC. If the public officer is an accountable officer, misappropriation of public funds is malversation (People vs. Barbas). If the public officer is not an accountable officer, misappropriation of funds is estafa (Ilumin vs. Sandiganbayan). Using a falsified check to defraud the bank is estafa through falsification of commercial document (Tanengee vs. People). Using a stolen and falsified check to defraud the bank is theft through falsification of commercial document (People vs. Salonga).

When the offender commits falsification of public, official or commercial document as a means to conceal malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31, 1933, En Banc), estafa (People vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft, the crimes are separate. This is not complex crime proper since one is not a necessary means to commit another. Other view: If falsification is committed for purpose of enabling the accused to commit malversation (People vs. Silvanna, G.R. No. L-43120, July 27, 1935; Zafra vs. People, G.R. No. 176317, July 23, 2014) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140) with less risk of being detected, the accused is liable for complex crime proper.

            Under the doctrine of common element, an element used to complete one crime cannot be legally re-used to complete the requisites of a subsequent crime (Regalado). The common element of estafa or malversation and falsification is damage to the victim. Thus, falsification of private document and estafa cannot co-exist. The use of damage as an element in falsification of private document precludes the re-use thereof to complete the elements of estafa, and vice versa.

            If the falsification of a private document is committed as a means to commit estafa, the proper crime to be charged is falsification. If the estafa can be committed without the necessity of falsifying a private document, the proper crime to be charged is estafa (Batulanon vs. People, G.R. NO. 139857, September 15, 2006). If the offender commits falsification of private document as a means to commit estafa, he is liable for falsification only. Falsification absorbs estafa. (See: U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516, November 10, 1931). If a person commits falsification of private document to conceal malversation or estafa, the crime is malversation or estafa only. Falsification of private document is not committed because: (a) the use of damage as an element in estafa precludes the re-use thereof to complete the elements of falsification; and (b) the damage to third person is not caused by the falsity in the document but by the commission of estafa (See: People vs. Beng, 40 O.G. 1913).

            If falsification of private document was used as a means to commit estafa, the former was committed ahead of the latter; hence, falsification absorbs the element of damage of estafa. If falsification of private document was used as a means to conceal estafa, the latter was committed ahead of the former; hence, estafa absorbs the element of damage of falsification.

99. In Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013 – There is no showing that mayor possessed that “criminal mind” when he issued the subject permits transport salvaged forest products to regulate and monitor this products in order to avert the occurrence of illegal logging in the area. He is not liable for usurpation of function of the DENR because of good faith.

            100. For purpose of malversation, national officer shall be considered as an accountable officer if he has custody or control of public property by reason of the duties of his office (Government Auditing Code of the Philippines) such as a principal of a public high school entrusted with public funds (Torres vs. People, GR No. 175074, August 31, 2011). However, the Local Government Code expanded the concept of accountable local officer. Local officer shall be considered as an accountable officer if he has  possession or custody of local government funds because of the nature of their functions or has participated in the use or application of thereof (Constantino vs. Sandiganbayan, G.R. No. 185224, July 29, 2015). Mayor and treasurer have duty to participate in the release of funds. Their signatures are needed to disburse municipal funds. No payment can be effected without their signatures. They had control and responsibility over the funds; hence, they are accountable officer (Evangelista vs. Hon. Sandiganbayan, G.R. No. 158413, February 08, 2012). However, a non-accountable officer or private individual can be held liable for malversation if he conspires with an accountable officer in committing the crime (People vs. Pajaro, G.R. Nos. 167860-65, June 17, 2008). Moreover, private individuals can be held liable for malversation if he in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual (Article 222).

            101.  To sustain a charge of malversation, there must either be criminal intent or criminal negligence (Torres vs. People, GR No. 175074, August 31, 2011). If the accused is charged of intentional malversation, but evidence shows that the crime is committed through negligence, he can be convicted of culpable malversation because of the variance rule. Dolo or culpa is just a mode of committing malversation.  Even if the mode charged differs from mode proved, accused can still be convicted of malversation (Torres vs. People, GR No. 175074, August 31, 2011).

102. In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so (Icdang vs. Sandiganbayan, G.R. No. 185960, January 25, 2012). Failure of an accountable public officer to explain the missing funds shall be prima facie evidence of misappropriation. However this presumption is disputable by evidence showing that he had fully accounted for the alleged cash shortage (Legrama vs. Sandiganbayan, G.R. No. 178626, June 13, 2012).

Private property, which is under custodia legis, is impressed with the character of public property. Hence, misappropriation of garnished property by a sheriff, or sequestered property by PCGG officer constitutes malversation.

The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate a such practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against "vales" or chits given in exchange by the borrowers. On the other hand, the the Commission on Audit time and again, through repeated office memoranda and rulings had warned against the acceptance of "vales" or chits by any disbursing officer because such transactions are really forms of loans (Meneses vs. Sandiganbayan, G.R. No. 100625 May 20, 1994).

103. The elements of failure to render accounting under Article 218 of RPC are: (1) that the offender is a public officer, whether in the service or separated therefrom; (2) that he must be an accountable officer for public funds or property; (3) that he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor; and (4) that he fails to do so for a period of two months after such accounts should be rendered. Demand before an accountable officer is held liable for this crime is not required. Article 218 merely provides that the public officer be required by law and regulation to render account (People vs. Lumauig, G.R. No.166680, July 7, 2014).

104. To commit the offense of knowingly rendering an unjust judgment, the offender must be a judge who is adequately shown to have rendered an unjust judgment, not one who merely committed an error of judgment or taken the unpopular side of a controversial point of law (Re:  Verified Complaint for Disbarment of AMA LAnd Inc. against CA Association Justice Bueser et.al., OCA IPI No. 12-204-CA-J, March 11, 2014).

105. In parricide, if the victim is his father, mother, or child, the relationship can either be legitimate or illegitimate; if the victim is the spouse, other ascendant such as grandparent or other descendant such as grandchild, the relationship must be legitimate (People vs. Gamez, GR No. 202847, October 23, 2013).

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

Husband, who killed his wife due to the circumstance that will indicate that she had just finished having sexual intercourse with another man, is liable for parricide. This is not death under exceptional circumstance in Article 247 of RPC since he did not surprise his spouse in the act of committing sexual intercourse. If a wife, who killed her husband after having surprised him in the act of sodomizing a gay, is liable for parricide. This is not death under exceptional circumstance since “sodomizing” or “homosexual intercourse” is not within the contemplation of the term “sexual intercourse” in Article 247.

 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.

X killed his wife in the act of having sexual with a man. It turned out that the man was raping his wife. X is not liable for parricide. The act of X would have produce death under exceptional circumstance had the facts that “the wife was voluntarily having sexual intercourse with a man” been as the accused believed to be. Because of mistake of fact, X should be sentenced to suffer destierro prescribed for death under exceptional circumstance.

X was declared presumptively death by the court. His wife A married B. NX suddenly went home and surprised A in the act of having sexual intercourse with her new husband B. X is not liable for parricide. This is a case of death under exceptional circumstance. In determining whether X is liable for parricide or death under exceptional circumstance, his criminal mind should be considered. As far as the mind of X is concerned, A is his wife and she surprised her in the act of infidelity. Hence, he should be held liable for death under exceptional circumstance only.

107. Among the amendments of the law on rape introduced under RA No. 8353 is Section 266-D, which provides “Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution rape” (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators agreed that Article 266-D is intended to soften the jurisprudence on tenacious resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002, En banc). Failure to shout should not be taken against the victim (People vs. Rivera, GR No. 200508, September 04, 2013; see: People vs. Rubio, G.R. No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It necessary for the victim to sustain physical injuries. She need not kick, bite, hit or scratch the offender with her fingernails to prove that she had been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).

            108. In incestuous rape of a minor, actual force or intimidation need not even be employed where the overpowering moral influence of appellant, who is private complainant’s father, would suffice (People vs. Samandre, G.R. No. 181497, February 22, 2012) In rape committed by a father, his moral ascendancy and influence over the victim substitute for the requisite force, threat, and intimidation, and strengthen the fear which compels the victim to conceal her dishonor (People vs. Ortega, G.R. No. 186235, January 25, 2012; People vs. Broca, GR No. 201447, January 09, 2013 People vs. Candellada, G.R. No. 189293, July 10, 2013, Justice De Castro; People vs. Osma, G.R. No. 187734, August 29, 2012, Justice De Castro).

109. The sweetheart theory, as a defense, necessarily admits carnal knowledge, the first element of rape. This admission makes the sweetheart theory more difficult to defend, for it is not only an affirmative defense that needs convincing proof; after the prosecution has successfully established a prima facie case, the burden of evidence is shifted to the accused, who has to adduce evidence that the intercourse was consensual (People vs. Deligero, GR No. 189280, April 17, 2013).

110. The term statutory rape should only be confined to situations where the victim of rape is a person less than 12 years of age. If the victim of rape is a person with mental abnormality, deficiency, or retardation, the crime committed is simple rape committed against a person "deprived of reason" (People vs. Dalan, G.R. No. 203086, June 11, 2014). In rape, the phrase "deprived of reason" refers to mental abnormality, deficiency or retardation, which includes (a) idiot (equivalent to two-year old child); (b) imbecile (seven-year old child); (c) moron or feebleminded (twelve-year old child) and (d) borderline intelligence. A person is guilty of rape when he had sexual intercourse with a female who was suffering from a "borderline mental deficiency (People vs. Butiong, G.R. No. 168932, October 19, 2011; G.R. No. 140209, December 27, 2002, People vs. Bayrante, G.R. No. 188978, June 13, 2012, Justice De Castro);

The term demented refers to a person who has dementia (schizophrenia) or insanity. On the other hand, the phrase deprived of reason includes those suffering from mental retardation. Accused was charged in the Information with rape of a demented person. Evidence however shows that the victim is not demented but mentally retarded. Mistake in the information will not exonerate the accused he failed to raise this as an objection (People vs. Ventura, Sr. GR. No. 205230, March 12, 2014) or there is an allegation in the information that his mental age is below 7 years old (People vs. Caoile, GR No. 203041, June 05, 2013, Justice De Castro).

111. RPC punishes the rape of a mentally disabled person regardless of the perpetrator’s awareness of his victim’s mental condition. However, the perpetrator’s knowledge of the victim’s mental disability, at the time he committed the rape, qualifies the crime (People vs. Caoile, GR No. 203041, June 05, 2013). Since knowledge is an element of this qualifying circumstance, it must be formally alleged in the information and duly proved by the prosecution (People vs. Obogne, GR No. 199740, March 24, 2014).

In qualifying circumstances of minority and relationship in rape and special aggravating circumstance under Section 31(c) of RA No. 7610 in sexual abuse under Section 5, the guardian must be a person who has legal relationship with his ward.  He must be legally appointed was first (People vs. Flores G.R. No. 188315, August 25, 2010). The common law husband of the mother of the minor-victim is not her guardian. If the information alleged that the accused is the guardian of the victim and not the common law spouse of her mother, rape is not qualified (People vs. Garcia, G.R. No. 120093, November 6, 1997).

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

113. Rape through sexual assault committed 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. If the offender used instrument or object in committing a crime, the crime is called instrument or object rape. In rape through sexual assault, the gender of the offender and the victim is not material. That is why this crime is called gender-free rape. Rape though sexual intercourse is committed by a man by having carnal knowledge with a woman. This crime is also called organ rape or penile rape. This is not a gender free crime since the offender must be a man while the victim must be a woman.

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

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

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

117. If the victim is 12 years old and above, and having sexual intercourse (or lascivious conduct) with her constitutes rape (or acts of lasciviousness) under RPC and sexual abuse under RA No. 7610, the offender can be prosecuted for either. He cannot be charged with both crimes for the same act because his right against double jeopardy will be prejudiced. Both crimes are of the same nature since the essence of both is having sex without consent. Consent of the child is not recognized by law. Likewise, rape cannot be complexed with sexual abuse. Under Section 48 of RPC, a felony cannot be complexed with an offense penalized by a special law (People v. Abay, G.R. No. 177752, February 24, 2009; People vs. Pangilinan, G.R. No. 183090, Nov. 14, 2011, People v. Dahilig, G.R. No. 187083, June 13, 2011, People v. Matias, G.R. No. 186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013).

If the victim is under 12 years old, and having sexual intercourse with her constitutes:

(a) Rape and sexual abuse - The offender can be prosecuted for rape (Section 5 of RA No. 7610);

(b) Acts of lasciviousness and sexual abuse - The offender can be prosecuted for acts of lasciviousness under RPC with the penalty of reclusion temporal in its medium prescribed by Section 5 of RA No. 7610.

(c) Rape through sexual assault and sexual abuse - The offender can be prosecuted for rape with the penalty of prision mayor prescribed by RPC. However, this rule is unfair. One who commits acts of lasciviousness in relation to RA No. 7610 suffers the more severe penalty of reclusion temporal in its medium period than the one who commits rape through sexual assault, which is merely punishable by prision mayor. To prevent unfairness, the penalty of reclusion temporal in its medium period shall be imposed to sexual assault committed against a child subjected to sexual abuse. In People vs. Chingh, G.R. No. 178323, March 16, 2011, the SC stated “To be sure, it was not the intention of the framers of RA No. 8353, to have disallowed the applicability of RA No. 7610 to sexual abuses committed to children. Despite the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children.”

(d) Qualified rape through sexual assault and sexual abuse - The offender can be prosecuted for rape with the penalty of reclusion temporal prescribed by RPC. In People vs. Bonaagua, G.R. No. 188897, June 6, 2011, since the crime committed is rape through sexual assault with qualifying circumstance of minority and relationship, the rationale of unfairness to the child victim that Chingh case wanted to correct is absent because RPC as amended by RA No. 8353 already prescribes the penalty of reclusion temporal for this crime. Hence, there is no more need to apply the penalty prescribed by RA No. 7610 for sexual abuse. The penalty under RPC should be imposed.

             

              118. Accompanying a child and offering her sexual services in exchange for money constitutes child prostitution. The accused who offered the victim to the one who raped her is not liable for rape as principal indispensable cooperation since bringing the victim to the rapist is not indispensable to the commission of the crime of rape (People vs. Dulay, GR No. 193854, September 24, 2012). If the accused is regularly offering the sexual service of the child in exchange for money, the crime committed is not anymore child prostitution. Maintaining or hiring the child as purpose of prostitution constitutes qualified trafficking in person because the former took advantage of vulnerability of the latter as a child and as one who need money. Minority is qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014). Recruiting without license a person, child or adult, to work as a prostitute abroad constitutes the crime of trafficking in person and illegal recruitment. Syndicate is qualifying circumstance in both crimes. Even if the accused is less than three, but the allegation and evidence shows that there are at least three traffickers and recruiters, syndicated can be appreciated as qualifying circumstance (People vs. Lalli, G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012).

119. The Family Code has expressly banned the infliction of corporal punishment by a school administrator, teacher or individual engaged in child care exercising special parental authority. A schoolteacher in employing unnecessary violence on her minor student, who even fainted from the violence suffered at her hands, is liable for child abuse under Section 10 of RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, October 08, 2014). Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 169533, March 20, 2013).

120. In order to constitute estafa through issuance of bouncing check, the postdating or issuing a check must be the efficient cause of the defraudation. In sum, the offender must be able to obtain money or property from the offended party by reason of the issuance of the check, whether dated or postdated (People vs. Reyes, GR No. 157943, September 04, 2013). Issuance of bouncing check to cover pre-existing obligation is not estafa.

To be guilty of this crime the accused must have used the check in order to defraud the complainant. What the law punishes is the fraud or deceit, not the mere issuance of the worthless check. However, prima facie evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three days from receipt of the notice of dishonor (People vs. Reyes, GR No. 157943, September 04, 2013). However, receipt of notice of dishonor is not an element of this crime.

            121. Estafa through false pretense vs. other deceit - In estafa under Article 315, the false representation is committed by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. Following the principle of ejusdem generis, other deceit as a means to commit estafa must be similar to pretending to possess power, imaginary transaction etc. If the deceit is not similar to pretending to possess power or imaginary transaction, the crime committed is other deceit under Article 318. In Guinhawa vs. People, G.R. No. 162822 August 25, 2005 () - Fraudulent representation of the seller that the van to be sold is brand new constitutes other deceit under Article 318. On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19, 1069, false representation that accused has a palay by reason of which the victim parted his money in consideration of the palay constitutes estafa under Article 315. Unlike in the Guinhawa case, the transaction in Rubaton case is imaginary.

            The false pretense made by accused that Primelink was authorized to sell membership shares is estafa. False pretense of qualification to sell securities is within the contemplation of the provision on estafa (Lopez vs. People,  GR No. 199294, July 31, 2013)

122. In other forms of swindling under Article 316, (1) and (2) of RPC, offender perpetrates false representation involving real property and act of ownership such as selling it, which causes damage to third person. In paragraph 1, the accused represents that he owned the property, while in paragraph 2, he expressly represents in the deed of conveyance that the property is free from encumbrance (Estrellado-Mainar vs. People, G.R. No. 184320, July 29, 2015).

123. A project manager, who took construction materials from the project site, is liable for qualified theft since the stolen properties are accessible to him (Zapanta vs. People, G.R. No. 170863, March 20, 2013). If the accused as an employee had no physical access to, or material possession of, the stolen goods owned by his employer, the qualifying circumstance of abuse of confidence cannot be appreciated (Viray vs. People, GR No. 205180, November 11, 2013). Breaking the main door because accused was denied access to complainant’s house means the latter has no confidence on the former. Qualified theft with abuse of confidence is not committed (Viray vs. People, GR No. 205180, November 11, 2013). The crime committed is robbery by using force upon thing.

124. If the subject matter of a crime against property was money, identity of the offended party in the information is indispensable for the proper identification of the offense charged. Since money is generic, it can only be identified connecting it to the offended party.  Thus, the erroneous designation of the offended party is fatal to the prosecution of the crime. If the subject matter of a crime against property is specific, identity of the offended party in the information is not indispensable for the proper identification of the offense charged. Since property is specific, it can be identified even without connecting it to the offended party (Senador vs. People, GR No. 201620, March 06, 2013).

125. Refusal to remit rentals for properties owned by corporation to corporate officers, who are not validly elected, does not constitutes estafa through misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015). In a prosecution for estafa through misappropriation, demand is not necessary where there is evidence of misappropriation or conversion (People vs. Arambulo, supra);

126. Misappropriation of personal property in possession of the accused may constitute estafa or theft depending upon the nature of possession. If his possession of the property is physical or de facto, misappropriation thereof is constitutive of theft. If the possession is juridical or legal, misappropriation thereof is estafa through misappropriation. But if the accused acquired not merely possession but also ownership over the property, his liability in connection with the property is merely civil.

            If there is a contract of agency, the possession of the agent over the property owned by principal is juridical. Under the Civil Code, an agent can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Guzman v. Court of Appeals, 99 Phil. 703). Thus, failure of the agent to return the money or property to the principal is estafa (Carganillo vs. People, G.R. No. 182424, September 22, 2014; Tria vs. People, G.R. No. 204755, September 17, 2014).

            In Velayo vs. People, G.R. No. 204025, November 26, 2014 – Accused induced to complainant to entrust to her the funds for the taxes because she knew someone at the BIR who could help her facilitate the remittance, and even reduce the amounts due. She received the money for remit the same to the BIR with full freedom and discretion. Thus, she had juridical possession of money. The crime committed is estafa.

            Driver of jeepney under boundary arrangement, who did not return the vehicle to the owner-operator, is liable for carnapping. The law prohibits operator of motor vehicle from leasing it. In the eye of the law the driver was only an employee of the owner rather than a lessee. For being an employee, his possession of the jeepney is physical (People v. Isaac G.R. No. L-7561, April 30, 1955), and thus, misappropriation thereof is carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004)

            As a rule, the possession of the employee is only physical possession. Hence, misappropriation of property is considered as theft. If the property is accessible to the employee because of his function as such, the qualifying circumstance of abuse of confidence can be appreciated. The following employees were convicted of qualified theft for misappropriating the property of their employer: (a) bank teller (People v. Locson, G.R. No. L-35681, October 18, 1932), (b) collector (Matrido vs. People, G.R. No. 179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466, February 25, 2015) and (c) cash custodian (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; Balerta vs. People, G.R. No. 205144, November 26, 2014). 

            However, there are instances where the possession of the employee is considered as juridical. 1. In Aigle vs. People, G.R. No. 174181, June 27, 2012 - A corporate officer received the property to be utilized in the fabrication of bending machines in trust from the corporation and he has absolute option on how to use them without the participation of the corporation. Upon demand, the officer failed to account the property. Since the corporate officer received the property in trust with absolute option on how to use them without the participation of the corporation, he acquired not only physical possession but also juridical possession over the equipment. He is liable for estafa through misappropriation. 2. In People vs. Go, G.R. No. 191015, August 6, 2014 – The President of the Bank is holding the bank’s fund in trust or for administration for the bank’s benefit. His possession is juridical. Hence, misappropriating the funds by making fictitious loan is estafa. 3. In Gamboa vs. People, G.R. No. 188052, April 21, 2014 - Accused employed as Liaison Officer of a pawnshop received money in trust to secure or renew licenses and permits. His possession is juridical. Hence, misappropriating the money is estafa.

           

            126. The term "personal property" in the Revised Penal Code should be interpreted in the context of the Civil Code. Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law. Thus, the business of providing telecommunication and the telephone service is a personal property (Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009).

            128. If the bulky goods are taken by the accused inside a compound (such as SM), theft is consummated even if the accused failed to bring out the stolen goods from the compound, which makes him unable to freely dispose it. Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Inability to dispose the stolen property is not an element of theft. Unlawful taking is the element which produces the felony in its consummated stage. Without unlawful taking, the offense could only be attempted theft, if at all. Thus, theft cannot have a frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21, 2007). Thus, taking tire inside the yard without consent of the owner with intent to gain consummates the crime of theft even if the same was not brought out of the yard.

            If the accused is charged with frustrated theft, he could not be convicted of the crime charged because theft has no frustrated stage. Neither could he be convicted of consummated theft since it was not alleged in the information. But he could be convicted of attempted theft because this crime is necessarily included in the charge of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015).

            129. The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of "asportation," which is defined as "carrying away." Jurisprudence is settled that to "take" under the theft provision of the penal code does not require asportation or carrying away (Medina vs. People,  G.R. No. 182648, June 17, 2015);

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

130. It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word “homicide” is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide. It is only the result obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into consideration. There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery and homicide, must be consummated (People vs. Laog, G.R. No. 178321, October 5, 2011; (People vs. Ebet, GR No. 181635, November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Diu, GR No. 201449, April 03, 2013, Justice De Castro).

In People vs. Concepcion, G.R. No. 200922, July 18, 2012 - Accused snatched victim’s shoulder bag which was hanging on her left shoulder. No violence, intimidation or force was used in snatching her shoulder bag. Given the facts, the snatching of shoulder bag constitutes the crime of theft, not robbery. Accused’s co-conspirator, who was driving the motorcycle, died because he lost control of the motorcycle and crashed in front of a taxi. Since accused as passenger in the motorcycle, did not perform or execute any act that caused the death of his companion, he cannot be held liable for homicide.

There was no law providing for the additional rape/s or homicide/s for that matter to be considered as aggravating circumstance in robbery with homicide or rape. The aggravating circumstances under Article 14 of RPC are exclusive, unlike in Art. 13 of the same Code which enumerates the mitigating circumstances where analogous circumstances may be considered, hence, the remedy lies with the legislature. Consequently, unless and until a law is passed providing that the additional rape/s or homicide/s may be considered aggravating, the Court must construe the penal law in favor of the offender as no person may be brought within its terms if he is not clearly made so by the statute (People vs, Sultan, G.R. No. 132470, April 27, 2000; People vs. Regala, G.R. No. 130508, April 5, 2000, En Banc; People vs. Gano, G.R. No. 134373, February 28, 2001, En Banc; People vs. Larranaga, 138874-75, February 3, 2004, En Banc).

In robbery with violence and intimidation against persons, dwelling is aggravating because in this class of robbery, the crime may be committed without the necessity of trespassing the sanctity of the offended party's house (People vs. Evangelio, G.R. No. 181902, August 31, 2011). Band or uninhabited place is a special aggravating circumstance in robbery. If this circumstance is present, the crime committed is robbery by band or in an uninhabited place under Article 295 of RPC. But if the crime committed is robbery with rape, band and uninhabited place shall be considered an ordinary aggravating circumstance. Article 295 is not applicable to robbery with rape. Nighttime is aggravating if the accused took advantage of the darkness of the night (People vs. Banhaon, G.R. No. 131117, June 15, 2004) or silence of the night or the circumstance that the victims and neighbors were sleeping (People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004).

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

131. Committing robbery in a store, which is not used as a dwelling, is robbery in a private building (Marquez vs. People, G.R. No. 181138, December 3, 2012). Where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue, Manila and removed forty watches therefrom, the crime was theft and not robbery because he did not enter the building. The show-window was outside the store (People vs. Adorno, CA 40 O. G. 567; People vs. Jaranilla. G.R. No. L-28547, February 22, 1974). In robbery by using force upon thing, using picklock, usurpation of property etc are modes of entering the building to take property therein.

Using picklock to open a locked cabinet and taking property therein is not robbery by using force upon thing. To constitute robbery by using force upon thing, the picklock must be used to open the building and not merely the locked receptacle. Entrusted key is not a false key in robbery by using force upon thing.

132. There is qualified carnapping or carnapping in the aggravated form when the owner or driver of the vehicle is killed in the course of the commission of the carnapping or on the occasion thereof. To prove this special complex crime, it is important to show that original criminal design of the culprit is to commit carnapping (People vs. Nocum, G.R. No. 179041, April 1, 2013). 

133. If the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only. When the Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life. Murder qualified by means of fire absorbs the crime of arson since the latter is an inherent means to commit the former (People vs. Baluntong, G.R. No. 182061, March 15, 2010). Single act of burning the building to kill to two victims constitutes compound crime of double murders (People vs. Gaffud, G.R. No. 168050, September 19, 2008).

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

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

134. Article 320 of RPC contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. Section 3 of PD No. 1613, on the other hand, currently governs simple arson. P.D. No. 1613 contemplates the malicious burning of public and private structures, regardless of size, not included in Article 320 of the RPC. This law punishes simple arson with a lesser penalty because the acts that constitute it have a lesser degree of perversity and viciousness. Simple arson contemplates crimes with less significant social, economic, political, and national security implications than destructive arson (People vs. Macabando, GR No. 188708, July 31, 2013). Burning of inhabited house or personal property is simple arson under Section 3 of P.D. No. 1613, and not destructive arson under RPC.

The accused set fire to his house, and that the fire spread to other inhabited houses. The fact that his act affected many families will not convert the crime to destructive arson because he did not manifest a high degree of perversity since his intention is merely to burn his house. Crime committed is simple arson under PD No. 532 (People vs. Macabando, supra). Note: Setting fire to his own property under circumstances which expose to danger the life or property of another is arson under Section 1 of PD No. 1613.

The accused set fire to her house knowing that houses of her neighbors may likewise be burned. She even stated “Damay-damay na tayo diyan, huwag ninyo nang patayin ang sunog”. As a consequence, adjacent houses were burned and an occupant of one house died. She is liable for destructive arson with homicide (People vs. Villacorta, G.R. No 172468, October 15, 2008, Leonardo-De Castro).

135. Even if the second marriage is null and avoid because of psychological incapacity, contracting such marriage is bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages (Tenebro vs. The Honorable Court of Appeals, G.R. No. 150758, February 18, 2004; Walter vs. People, GR No. 183805, July 03, 2013). Note: Article 40 of the Family Code is not applicable since the provision contemplates a situation where first marriage and not the second marriage is null and void.

Even if the first marriage is null and avoid because of psychological incapacity (Wiegel v. Sempio-Diy, 143 SCRA 499) or the absence of a marriage license or of an affidavit of cohabitation (Lasanas vs. People, G.R. No. 159031, June 23, 2014), contracting a second marriage constitutes the crime of bigamy unless a judicial declaration of the nullity of the first marriage has been secured beforehand. Because of Article 40 of the Family Code, a declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense (Lasanas vs. People, supra).

Contracting second marriage without previous judicial declaration of nullity of the first marriage consummates the crime of bigamy. One the crime consummates, criminal liability will attach to the accused. The following subsequent developments will not extinguish his criminal liability for bigamy: (a) Subsequent declaration of nullity of the first marriage obtained before the filing of the complaint for bigamy (People vs. Odtuhan,  GR No. 191566, July 17, 2013); (b) Subsequent declaration of nullity of the first marriage and second marriage (Jarillo vs. People, GR No. 164435, September 29, 2009).

Even if the first marriage was contracted prior to the Family Code, this is not a defense. Article 40, which is a rule of procedure, should be applied retroactively. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs. People, GR No. 164435, June 29, 2010).

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

X contracted three marriages. His first wife is already dead when X contracted his third marriage. X is liable for bigamy involving the second marriage on the basis of his first marriage. X is not liable for bigamy involving the third marriage on the basis of the first marriage since the first has already been extinguished by reason of death of the first wife when he contracted the third. He is not liable for bigamy involving the third marriage on the basis of the second marriage since the latter is null and void for being a bigamous marriage.

136. A priest, who performed a marriage ceremony despite knowledge that the couple had no marriage license, is liable for illegal marriage. The non-filing of a criminal complaint against the couple does not negate criminal liability of the priest. Article 352 does not make this an element of the crime. The law sets the minimum requirements constituting a marriage ceremony: first, there should be the personal appearance of the contracting parties before a solemnizing officer; and second, their declaration in the presence of not less than two witnesses that they take each other as husband and wife. For purposes of determining if a marriage ceremony has been conducted, a marriage certificate is not included in the requirements (Ronulo vs. People, G.R. No. 182438, July 02, 2014).

            137. Under this doctrine, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.  The doctrine of fair comment means that while in general every defamatory and public imputation is deemed false, and every false imputation is deemed malicious, nevertheless, when the defamatory imputation is directed against a public person in his public capacity, it is not necessarily actionable.  In order that such defamatory imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts (Borjal vs. CA, G.R. No. 126466, January 14, 1999).

            What is the difference between fair and true report, and fair comment as a privilege communications? (1) In fair and true report, the accused makes a report on the function-related acts performed by public officers without any comments or remarks. On the other hand, in fair comment, the accused is making a comment on the function-related acts performed by public officers. (2) In fair and true report, the prosecution must prove actual malice i.e., such as the report was made in bad faith. In fair comment, the prosecution must actual malice i.e., comment was made with knowledge that comment was false or with reckless disregard of whether it was false or not (Sulivan vs. Newyork Times doctrine; Guingguing vs. the Honorable Court of Appeals, G.R. No. 128959, September 30, 2005) Only false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions (Flor vs. People, G.R. No. 139987, March 31, 2005). (3) In fair and true report, the report involving defamatory statement must be true. In fair comment, the defamatory imputation in the commentary is not true but the accused has no knowledge that it is false and has not recklessly disregarded to know whether it is false or not.

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

            138. Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. Online defamation constitutes “similar means” for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335, February 18. 2014). The place where libelous article was accessed by the offended party in the internet is not equivalent to the place where the libelous article is “printed and first published”.  To rule otherwise is to allow the evil sought to be prevented by the amendment to Article 360, and that was the indiscriminate laying of the venue in libel cases in distant, isolated or far-flung areas, to harass an accused. At any rate, Article 360 still allow offended party to file the civil or criminal complaint for internet libel in their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5, 2010).

            139. Reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes; hence conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various consequences. The essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty. It does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense criminal negligence remains one and the same, and cannot be split into different crimes and prosecutions (Ivler vs. Modesto-San Pedro, G.R. No. 172716, November 17, 2010).

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

            141. MMDA officer is extorting money from a driver of a vehicle, who committed trafficking violation along Edsa. The officer threatened the driver that he will confiscate her driver’s license unless she will give him P500.00.  However, MMDA officer is not aware that his act of extorting money is being video-recorder by a passenger. The passenger violated the Anti-Wire Tapping Law. The recording of private conversations without the consent of the parties contravenes the provisions of RA No. 4200 (Anti-Wire Tapping Law). The law covers even those recorded by persons privy to the private communications. The law is applicable even if the conversation being recorder pertains to criminal extortion (Mamba vs. Garcia, A.M. No. MTJ-96-1110, June 25, 2001). Passenger is criminally liable for violating law. On the other hand, MMDA officer is liable for attempted robbery. However, in proving attempted robbery, the driver cannot use the recording since the same is not admissible in evidence.

            142. “A”, a mayor used the money acquired through the commission of plunder in buying a mansion somewhere in Batangas. To hide ownership over the mansion, the property was registered in the name “B”. “C”, a lawyer, prepared the documents to make it appear that the property is owned by “B”. “A” is liable for money laundering under RA No. 9160 as amended by RA No. 10365 because he transacted monetary instrument connected with an unlawful activity, and that is plunder. “B” is liable for money laundering since he concealed or disguised the true nature, or ownership of the property connected with plunder. “C” is liable for money laundering since he counseled the commission of the money laundering offenses.   

Unlawful activity includes piracy, murder, distructive arson, kidnapping for ransom, crimes involving dangerous drugs; hijacking, carnapping, fencing,  robbery, qualified theft, and estafa; bribery and corruption of public officers, frauds and Illegal exactions, malversation, graft and corruption, and plunder etc.

143. The acts of attaching the face of his ex-girlfriend on a nude body of a woman in a picture, sending the picture to her through cell phone text message and threatening to post it in the internet for all to see that caused substantial emotional and psychological distress to her constitute of psychological violence against woman under Section 5 (h) of RA No. 9262 (Ang vs. The Honorable CA, G.R. No. 182835, April 20, 2010).

            144. In Villareal vs. People, G.R. No. 151258, February 1, 2012, the accused was liable for reckless imprudence resulting in homicide involving the death of Lenny Villa during hazing rite. This is not anymore controlling. The crime committed if a neophyte died during hazing rite is hazing punishable by RA No. 8049. The crime of hazing is thus committed when the following essential elements are established: (1) a person is placed in some embarrassing or humiliating situation or subjected to physical or psychological suffering or injury; and (2) these acts were employed as a prerequisite for the person’s admission or entry into an organization (People vs. Bayabos, G.R. No. 171222, February 18, 2015). The Philippine Merchant Marine Academy is included in the term organization within the meaning of the law (People vs. Bayabos).

              Failure to allege that the physical or psychological harm were employed as a prerequisite for admission or entry into the organization would prevent the successful prosecution of the criminal responsibility of the accused, either as principal or as accomplice, for the crime of hazing. Plain reference to a technical term – in this case, hazing – is insufficient and incomplete, as it is but a characterization of the acts allegedly committed and thus a mere conclusion of law (People vs. Bayabos).

            In homicide or murder, what is criminal is the killing of person. Hence, intent to kill is an indispensable element. Death of the victim consummates the crime. In hazing, what is prohibited is the infliction of the infliction of physical or psychological suffering on another in furtherance of the latter’s admission or entry into an organization (People vs. Bayabos). Hence, intent to kill is not material.

            Homicide or murder is malum in se. Consent of the victim to the infliction of harm may negate dolo or criminal intent, which would make the killing punishable as reckless imprudence (Villareal vs. People, G.R. No. 151258, February 1, 2012). Hazing is malum prohibitum. Consent of the neophyte is not a defense (Senate deliberation).

            In hazing, criminal responsibility is based on (1) actual participation in inflicting physical harm, (2) presumed participation (of those who are present during the hazing), (3) the presence of adviser, (4) participation in the planning (by officers, former officers and alumni of the fraternity); (5) knowledge (of the parent of frat member in the home of whom hazing occurred, owner of the place commission, and school authorities).

            The owner of the place commission, and school authorities are liable for hazing as accomplices.

            In the case of school authorities and faculty members who have had no direct participation in the act, they may nonetheless be charged as accomplices if it is shown that (1) hazing, as established by the above elements, occurred; (2) the accused are school authorities or faculty members; and (3) they consented to or failed to take preventive action against hazing in spite actual knowledge thereof (People vs. Bayabos).

            The corresponding responsibilities of the principal, accomplice, and accessory are distinct from each other. As long as the commission of the offense (hazing) can be duly established in evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal (People vs. Bayabos).

            145. Illegal possession of loose firearm is absorbed in rebellion or attempted coup d’etat. As a rule, when use of a loose firearm is inherent in the commission of other crime, such circumstance shall be considered as an aggravating circumstance. For example, if a loose firearm was used in committing homicide, the penalty of reclusion temporal prescribed for shall be applied in its maximum period.

However, if the penalty for illegal possession of loose firearm is graver than that prescribed for other crime committed, the penalty for the latter shall be applied. For example, the penalty for alarm and scandal is arresto menor while the penalty for illegal possession of small arm under Section 28 of RA No. 10591 is prision mayor in its medium period. If a loose firearm is used in committing alarm and scandal, the accused shall be prosecuted for alarm and scandal but the penalty imposable is prision mayor in its medium period prescribed for possession of loose firearm.

146. In People vs. Chan Liu, G.R. No. 189272, January 21, 2015, accused were caught by police authorities on board a speedboat carrying shabu. They were charged with importation of dangerous drugs. However, since it was not proven that the drugs came from China or foreign country they were convicted of possession of dangerous drugs, which is necessarily included in the charge of importation.

147. Silence of the law as to the consequences of the failure on the part of the law enforcers to seek the prior authority of the PDEA cannot be interpreted as a legislative intent to make an arrest without such PDEA participation illegal or evidence obtained pursuant to such an arrest inadmissible (People vs. Clarite, G.R. No.  187157, February 15, 2012). Lack of coordination with the PDEA will not invalidate a buy-bust operation.  Such coordination is not an indispensable requirement in buy-bust operations.  Neither Section 86 of Republic Act No. 9165 nor its Implementing Rules and Regulations make PDEA’s participation a condition sine qua non for the conduct of a buy-bust operation (People vs. Mendosa, G.R. No. 189327, February 29, 2012)

148. In Ambre vs. People, G.R. No. 191532. August 15, 2012 - In  no  instance did accused challenge, at the RTC,  the  supposed  absence  of confirmatory  drug  test  conducted  on  her. Accused only questioned the alleged omission when she appealed her conviction before the CA.  It was too late in the day for her to do so.  Well entrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice.

149. Under Section 21 of RA No. 9165, the apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused, his representative or counsel, media and DOJ, and any elected public official. Non-compliance with the requirements of Section 21 of R.A. No. 9165 will not necessarily render the items seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not required if there is a clear showing that the integrity and the evidentiary value of the seized items have been preserved (David vs. People, Gr No. 181861, October 17, 2011, ; Marquez vs. People, G.R. No. 197207, March 13, 2013; People vs. Morate, GR No. 201156, January 29, 2014; People vs. Ladip, GR No. 196146, March 12, 2014; People vs. Bis, GR No. 191360, March 10, 2014).

150. Thus, the following links must be established in the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turn over of the illegal drug seized by the apprehending officer to the investigating officer; third, the turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turn over and submission of the marked illegal drugs seized from the forensic chemist to the court (People vs. Constantino, Jr. GR No. 199689, March 12, 2014)

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

152. Possession of different kinds of dangerous drugs in a single occasion constitutes a single offense of possession of dangerous drugs (David vs. People, G.R. No. 181861, October 17, 2011).

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

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

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

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

154. Section 23 of RA No. 9165, any person charged under any crime involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.

155. Demand letter was given with the security guard with the instruction to hand it to accused. But there is no showing that the letter ever reached accused. Counsel sent a demand letter to accused by registered mail which was returned with the notation "N/S Party Out 12/12/05" and that accused did not claim it despite three notices to her. Since there is insufficient proof that accused actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. Accused was acquitted. However, he is still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).

156. Exerting efforts to reach an amicable settlement with her creditor after the checks which she issued were dishonored by the drawee bank is a circumstantial evidence of receipt of notice of dishonor. Accused would not have entered into the alleged arrangements if she had not received a notice of dishonor from her creditor, and had no knowledge of the insufficiency of her funds with the bank and the dishonor of her checks (Campos vs. People. G.R. No. 187401, September 17, 2014).

157. Under Section 114(d) of the Negotiable Instruments Law, notice of dishonor is not required to be given to the drawer in either of the following cases where the drawer has no right to expect or require that the drawee or acceptor will honor the check. Since petitioner's bank account was already closed even before the issuance of the subject check, he had no right to expect or require the drawee bank to honor his check. By virtue of the aforequoted provision of law, petitioner is not entitled to be given a notice of dishonor (Lopez vs. People,  G.R. No. 166810, June 26, 2008, Justice De Castro). The crime involved in Lopez vs. People is estafa through issuance of bouncing check. However, it is submitted the Lopez principle can be applied to violation of BP 22.

158. Payment of check before the filing of information is a defense. The spirit of B.P. Big 22, which is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently corrected their mistakes and restituted damages even before charges have been filed against them. In sum, by making payment of the check before the filing of the information, the purpose of the law has already been attained. 1. Payment after receiving subpoena from the office of city prosecutor (Lim vs. People, G.R. No. 190834, November 26, 2014) 2. Payment through notarial foreclosure two years before the filling of cases (Griffith vs. Hon. CA, G.R. No. 129764, March 12, 2002) 3. Payment six (6) months before the filing of case (Cruz vs. Cruz, G.R. No. 154128, February 8, 2007)

Payment of check after the filing of information is not a defense. Since there is no showing of intention to mitigate or totally alleviate the ill effects of his issuance of the unfunded check, then there is no equitable and compelling reason to preclude the prosecution of accused. In such a case, the letter of the law should be applied to its full extent (Lim vs. People, supra). In estafa, damage and deceit are the essential elements of the offense, and the check is merely the accused's tool in committing fraud. In such a case, paying the value of the dishonored check will not free the accused from criminal liability. It will merely satisfy the civil liability of the crime but not the criminal liability (Lim vs. People, supra). Note: The essence of estafa is to punish fraud and not to protect the integrity of the check.

159. Considering that there was a lawful Order from the SEC, the contract is deemed suspended. When a contract is suspended, it temporarily ceases to be operative; and it again becomes operative when a condition occurs - or a situation arises - warranting the termination of the suspension of the contract. When a contract is subject to a suspensive condition, its birth takes place or its effectivity commences only if and when the event that constitutes the condition happens or is fulfilled. Thus, at the time complainant presented the check for encashment, it had no right to do so, as there was yet no obligation due from accused. Thus, accused is not liable for violation of BP Blg. 22 (Gidwani vs. People, GR No. 195064, January 15, 2014).

160. The deliberation in the Senate regarding the bill on anti-graft shows that the mode of committing the crime under Section 3 (a) is persuading, inducing or influencing a public officer by another public officer to commit an offense or to violate rules and regulations by means of consideration, reward, payment or remuneration (See: Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006). Hence, Grace Poe is not committing this crime since she is not inducing Secretary De Lima to commit an offense or violate rules in connection with the criminal complaint against INC officers by means of consideration, reward, payment or remuneration.

            161. Section 3 (b) of RA No. 3019, directly or indirectly requesting or receiving any gift, present, or benefit in connection with any contract or transaction involving monetary consideration where the public officer has the authority to intervene under the law. Preliminary investigation is not a contract or transaction. Hence, requesting or receiving money in connection with a preliminary investigation is not a violation of this provision (Soriano, Jr. vs. Sandiganbayan, G.R. No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice Secretary Perez, G.R. No. 188165, December 11, 2013).

 

162. A paymaster obtained cash advances despite the fact that she has previous unliquidated cash advances. The City Treasurer certified that the cash advances are necessary and lawful. The City Accountant certified that the expenditures are supported by documents and previous cash advances are liquidated and accounted for. The City Administrator approved the voucher and countersigned the check. The paymaster is liable for violation of Section 3 (e) of RA No. 3019. The City Treasurer, City Accountant and City administrator are liable because of conspiracy of silence or inaction. Public officers’ omissions to question irregularities indicate a common understanding and concurrence of sentiments respecting the commission of the offense (Jaca vs. People, G.R. No. 166967, January 28, 2013).

163. The property bought by the City is overpriced. Accused was charged with violation of Section 3 (e) of RA No. 3019 for causing damage to the government through manifest partiality and evident bad faiths. The only evidence presented by the prosecution is his on the voucher. He was acquitted. Accused cannot be convicted on grounds than the mere signature or approval appearing on a voucher. Heads of offices can rely to a reasonable extent on their subordinates on preparation of bids, purchase of supplies, or negotiations (Arias v. Sandiganbayan, G.R. Nos. 81563 & 82512, 19 December 1989).

However, the principle in the Arias case where is not applicable where circumstances other than signature of the voucher shows evident bad faith, manifest partiality or gross inexcusable negligence such as: (1) Where the accused has foreknowledge of existing anomaly - e.g. mayor signed the inspection report and the disbursement voucher despite the fact that he had foreknowledge that the materials delivered by Guadines have already been confiscated by the DENR (Escara vs. People, G.R. No. 164921, July 8, 2005); (2) Where there is deviation from ordinary procedure – e.g. mayor issued and encashed municipal checks despite the facts that the disbursement vouchers were in the name of Kelly Lumber but the checks were payable to the accused and not to Kelly Lumber (Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005); and (3) Where accused approved the voucher without indication of the retention money required by law, and he even inspected the construction site of PAL Boat, in which he should have noticed the financial weakness of the contractor and the defective works (Rivera vs. People, G.R. No. 156577, December 03, 2014).

Arias principle is not applicable if the public officer acting in his capacity as head of office has not relied on his subordinates but on officers of equal rank such as heads of the Office of the City Treasurer and , the Office of the City Accountant (Jaca vs. People, G.R. No. 166967, January 28, 2013)

164. There are two ways by which a public official violates Section 3(e) of RA No. 3019 in the performance of his functions, namely: (1) by causing undue injury to any party, including the Government; or (2) by giving any private party any unwarranted benefit, advantage or preference. The accused may be charged under either mode or both. The disjunctive term “or” connotes that either act qualifies as a violation of Section 3(e) (Rivera vs. People, G.R. No. 156577, December 03, 2014).

165. Section 3 (3) of RA No. 3019 is not applicable exclusively to public officers charged with the duty of granting licenses or permits or other concessions. It may apply to other public officers (Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987; Consigna vs. People, G.R. No. 175750, April 2, 2014). 

166. The concept of "undue injury," in the context of Section 3(e) of RA No. 3019 is the same as the civil law concept of "actual damage."  It is required that undue injury must be specified and quantified (M.A. Jimenez Inc. vs. The Hon. Ombudsman, G.R. No. 155307, June 06, 2011). The inconvenience suffered by reason of the “long period of time” that her salaries were withheld is not constitutive of undue injury (Domingo vs. Sandiganbayan, G.R. No. 149406, October 25, 2005).

167. In the first mode of committing the crime, the undue injury is caused to any party including the government. In the second mode, the unwarranted benefits, advantage or preference is given to private party. Giving unwarranted benefits, advantage or preference to the government or public official is not constitutive of the crime under Section 3 (e). The term "private party" may be used to refer to persons other than those holding public office (Bautista vs. Sandiganbayan, G.R. No. 136082, May 12, 2000) or public officer acting in a private capacity to protect his personal interest (Ambil vs. Sandiganbayan, G.R. No. 175457, July 06, 2011). Giving unwarranted benefit to the mayor transferring him from the provincial jail and detained him at a residence is a violation of Section 3 (e). Such privilege was accorded to the mayor not in his official capacity, but as a detainee charged with murder.  Thus, for purposes of applying the provisions of Section 3(e), the mayor was a private party (Ambil vs. Sandiganbayan, supra).

168. There was really no sufficient justification tendered by the State for the long delay of more than five years in bringing the charges against the respondents before the proper court. On the charge of robbery, the preliminary investigation would not require more than five years to ascertain the relevant factual and legal matters. Because of the inordinate delay in resolving the criminal complaint by the Ombudsman against respondent, the cases against respondent were dismissed (People vs. Hon. Sandiganbayan,  and Perez, G.R. No. 188165, December 11, 2013).

169. There are three requisites of preventive suspension of a public officer under Section 13 of RA No. 3019, to wit: (1) a public officer is charged with violation of RA No. 3019; crimes committed by public officer under RPC such malversation or direct bribery or (3) offense involving fraud upon government or public funds or property; (2) the public officer is being criminally prosecuted under valid information; and (3) pre-suspension hearing is conducted.

170. Usurpation of public authority (Miranda vs. Hon. Sandiganbayan, G.R. NO. 154098, July 27, 2005) or election offense (Juan vs. People, G.R. No. 132378, January 18, 2000) is an offense an offense involving fraud against the government. Falsification of document (vouchers) is an offense involving fraud upon public funds (Bustillo vs. Sandiganbayan, G.R. No. 146217, April 7, 2006).

171. Information for violation of RA No. 3019 is not valid where the complaint filed for preliminary investigation charged the accused with the lesser crime of falsification of document (Luciano vs. Mariano, G.R. N L-32950, July 30, 1971) or where no preliminary investigation was conducted (People vs. Albano, GR No. L-45376, July 26, 1988).

172. The imposition of the preventive suspension is not automatic or self-operative. There must first be a valid information, determined at a pre-suspension hearing (Layus M.D. vs. Sandiganbayan, G.R. No. 134272, December 8, 1999). Upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from office. Where either the prosecution seasonably files a motion for an order of suspension, or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary (Miguel vs. Hon. Sandiganbayan, G.R. No. 172035, July 04, 2012).

173. The court during the pre-suspension hearing is required to ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the filing of the information against him, (2) the acts for which he was charged constitute a violation of the provisions of RA No. 3019 or crimes committed by public officers under Title 7, Book II of RPC, or offense involving fraud upon government or public funds or property, (3) the information against him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of Court (Aguinaldo vs. Sandiganbayan, G.R. No. 124471, November 28, 1996).

174. The preventive suspension is mandatory once the validity of the information is determined in a pre-suspension hearing, and there are no "ifs" and "buts" about it (Libanan vs. Sandiganbayan, G.R. No. 112386, June 14, 1994; Bunye vs. Escareal, G.R. No. 110216, September 10, 1993).

175. Even though the law is silent on the duration of the preventive suspension, the suspension should not be indefinite. Section 13 of RA No. 3019 does not provide the period of preventive suspension. Hence, the duration of suspension under the Administrative Code, or the Local Government Code may be adopted in fixing the duration of suspension. Thus, the period of preventive suspension for national officers, elective or appointive, shall not exceed 90 days pursuant to Administrative Code (Gonzaga vs. Sandiganbayan, G.R. No. 96131, September 6, 1991; Deloso vs. Sandiganbayan, G.R. No. 86899, May 15, 1989). On the other hand, the period of preventive suspension for local elective officers shall not exceed 60 days in accordance with the Local Government Code (Nicart, Jr. vs. Hon. Sandiganbayan, Third Division,  G.R. No. 147272, July 14, 2006).

176. The word “office”, from which the public officer charged shall be preventively suspended under Section 13 of RA No. 3019, could apply to any office, which he might currently be holding and not necessarily the particular office under which he was charged. The preventive suspension of the following public officers was sustained: (1) a mayor, who was charged with acts committed as a government auditor of the Commission on Audit (Bayot vs. Sandiganbayan, G.R. No. L-61776 to L-61861, March 23, 1984); (2) governor, who was charged with acts committed as municipal mayor (Deloso vs. Sandiganbayan, G.R. No. 86899, May 15, 1989); and (3) a Vice-Governor, whose suspension is predicated on his acts supposedly committed while still a member of the Sangguniang Bayan (Libanan vs. Sandiganbayan, G.R. No. 112386, June 14, 1994).

177. Preventive suspension cannot amount to a deprivation of property without due process of law. Public office is "a public agency or trust," and it is not the properly envisioned by the Constitutional provision (Libanan vs. Sandiganbayan, G.R. No. 112386, June 14, 1994).

178. The preventive suspension under Section 13 of RA No. 3019 is not penalty.  Thus, suspension, which is being ordered before a judgment of conviction is reached, is not violation of constitutional right to be presumed innocent (Bunye vs. Escareal, G.R. No. 110216, September 10, 1993). The suspended accused, whose culpability remains to be proven, are still entitled to the constitutional presumption of innocence (Juan vs. People, G.R. No. 132378, January 18, 2000).

179. 1. The elements of plunder are:

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

(2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts:

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

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

(c) by the illegal or fraudulent conveyance or disposition of assets belonging to government (Example: Ordering the GSIS and the SSS by President Estrada to purchase shares of stock of Belle Corporation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007);

(d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

(e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

(f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines;   

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

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

            If a Senator, his assistant and private individuals conspires in acquiring ille-gotten wealth by misappropriating the pork barrel amounting to P172 million of the former, the total amount of ill-gotten wealth acquired by the conspirators including the private individuals shall be considered for purpose of determining if plunder has been committed (Enrile vs. People, G.R. No. 213455, August 11, 2015).

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

180. Section 4 of RA No. 7080 provides a rule of evidence. Under this provision, for purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. Establishing beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy is sufficient to prove plunder. However, pattern of overt acts is not an element of plunder. Section 4 merely provides a rule on evidence (Joseph Ejercito Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001).

To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury.  The  prosecution  need  not  prove  all  these  fifty  (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00 (Joseph Ejercito Estrada vs. Sandiganbayan, supra).

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

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

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

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

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

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