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07-12-2019, 05:12 PM

2018 GOLDEN BEACON CRIMINAL LAW

By:
Dean MANUEL R. BUSTAMANTE

1. JUVENILE JUSTICE AND WELFARE ACT OF 2006 (RA 9344)

Q: What is the criminal responsibility of a child over nine years of age and under fifteen who has acted with discernment?

A: He is exempt from criminal liability. (Paragraph 3 of Article 12 of the Revised Penal Code has been repealed by Sec. 6 of RA 9344, which provides:

“SEC. 6. Minimum Age of Criminal Responsibility. --- A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subject to an intervention program pursuant to Section 20 of this Act.”

Q: Define intervention.

A: It refers to a series of activities which are designed to address issues that caused the child to commit an offense, in the form of an individualized treatment program including counseling, skills training, education and other activities that will enhance his/her psychological, emotional and psycho-social well-being.

Q: What is the criminal responsibility of a child above 15 years but below 18 years of age?

A: He is likewise exempt from criminal liability unless he has acted with discernment. (Sec. 6 2nd par. Of RA 9344 provides:

“A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subject to the appropriate proceedings in accordance with this Act.”

Q: Over what offenses are persons below eighteen (18) years exempt from prosecution?

A: 1. Vagrancy and Prostitution under Art. 202 of the Revised Penal Code.

2. Mendicancy under PD 1563

3. Sniffing of Rugby under PD 1619.

Such prosecution being inconsistent with the United Nations Convention on the Rights of the Child. (Sec. 58).

PEOPLE vs. HALIL GAMBAO, THIAN PERPETIAN et. al.
G.R. No. 172707, October 1, 2013, 706 SCRA 508

FACTS: Perpetian was 17 years old at the time of the commission of the crime of kidnapping with ransom of a minor son of Lucia Chan.

She was convicted as principal due to her presence in the commission of the crime.

At the time this case was reviewed by the Supreme Court, she is already 31 years old.

ISSUES: (1) Whether Perpetian is a co-principal.

(2) Whether her minority be appreciated as mitigating circumstance.

(3) Whether she can avail of the benefit of suspension of

sentence of a child in conflict with the law under RA 9344.

HELD: (1) NO. Perpetian is not a principal but only an accomplice. Being present and giving moral support when a crime is being committed will make a person responsible as an accomplice in the crime committed.

Her presence and company were not indispensable and essential to the perpetration of the kidnapping with ransom, hence, she is only liable as an accomplice.

(2) NO. Her minority should be appreciated not as an exempting but only as privileged mitigating circumstance. Pursuant to the passing of RA 9344, a determination of whether she acted with or without discernment is necessary. Considering that Perpetian acted with discernment when she was 17 years old at the time of the commission of the offense, her minority should be appreciated not as exempting but as a privileged mitigating circumstance pursuant to Article 68 of the Revised Penal Code.

(3) NO. Under Section 38 of RA 9344, the suspension of sentence of a child in conflict with the law shall still be applied even she is already 18 years of age or more at the time of the pronouncement of her guilt. Unfortunately, at her present age of 31, Perpetian can no longer benefit from the aforesaid provision, because under Article 40 of RA 9344, the suspension of sentence can be availed of until the child in conflict of law reaches the maximum age of 21 years.

2. What are the three cardinal features or main characteristics of Criminal Law? Give the exceptions thereto. (1978; 1988; 1998)

A: The three cardinal principles or characteristics of criminal law are:

GENERALITY. Criminal laws apply to all persons who commit crimes in Philippine territory regardless of their nationality, gender, age or other personal circumstances. Exceptions to this are treaty stipulations, laws of preferential application and principles of public international law.

TERRITORIALITY. Criminal laws apply to all offenses committed within Philippine territory. Exceptions to this rule are those found in Art. 2 of the RPC which provides for extraterritorial jurisdiction of our courts.

PROSPECTIVITY. Penal laws cannot make an act punishable in a manner in which it was not punishable when committed. Exception to this rule is whenever a new statute dealing with a crime establishes conditions more lenient or favorable to the accused, it can be given retroactive effect. However, this exception has no application: 1) where the new law is expressly made inapplicable to pending actions or existing causes of action and; 2) where the offender is a habitual criminal under Art. 62 RPC.

3. Distinguish motive from intent. (1978; 1996; 1999; 2004)

A: Motive is the reason which impels one to commit an act for a definite result while intent is the purpose to use a particular means to effect such result. Intent is an element of the crime (except in unintentional felonies), whereas motive is not.

4. ACCESSORY (PD 1829)

Q: When will an accessory in a crime be liable as a principal in another crime?

A: When he is an accessory whose act or omission is also penalized in a special law. In crimes under special laws or crimes mala prohibita, the offenders generally are penalized as principals unless otherwise provided.

Those who assist the principal to escape may be prosecuted under PD 1829 on obstruction of justice not as accessory but as a principal, provided that a separate information shall be prepared for the crime of obstruction.

5. What do you understand by aberratio ictus, error in personae and praeter intentionem? Do they alter the criminal liability of the accused? (1989; 1993; 1994; 1999)

A: Aberratio ictus or mistake in the blow occurs when the offender delivered the blow at his intended victim but missed, and instead such blow landed on an unintended victim. The situation generally brings about complex crimes where from a single act, two or more grave or less grave felonies resulted, namely the attempt against the intended victim and the consequences on the unintended victim. As complex crimes, the penalty for the more serious crime shall be the one imposed and in the maximum period. It is only when the resulting felonies are only light that complex crimes do not result and the penalties are to be imposed distinctly for each resulting crime.

Error in personae or mistake in identity occurs when the offender actually hit the person to whom the blow was directed but turned out to be different from and not the victim intended. The criminal liability of the offender is not affected, unless the mistake in identity resulted to a crime different from what the offender intended to commit, in which case the lesser penalty between the crime intended and the crime committed shall be imposed but in the maximum period (Art. 49, RPC).

Praeter intentionem or where the consequence went beyond that intended or expected. This is a mitigating circumstance (Art. 13, par. 3, RPC) when there is a notorious disparity between the act or means employed by the offender and the resulting felony, i.e., the resulting felony could not be reasonably anticipated or foreseen by the offender from the act or means employed by him.

6. Distinguish mala in se from mala prohibita. (1988; 1997; 1998; 2001; 2003)

A: Mala in se is a wrong from its very nature, as most of those punished in the RPC. Hence, in its commission, intent is an element and good faith is a defense. The test to determine whether an offense is mala in se is not the law punishing it but the very nature of the act itself.

On the other hand, an act mala prohibita is a wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. Hence, the mere commission of that act is what constitutes the offense punished and criminal intent will be immaterial for reason of public policy.

Q: Is an election offense mala in se?

A: YES. Clearly, the acts prohibited in Section 27 (b) are mala in se. For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and mistakes are bound to happen. And it could not be intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure others. (Garcia vs. Court of Appeals, G.R. No. 157171, March 14, 2006, 484 SCRA 617)

Q: May a mala in se felony absorb mala prohibita crimes?

A: A mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984 and RA 7942). What makes the performer a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them. (Loney vs. People, G.R. No. 152644, February 10, 2006, 482 SCRA 194).

Q: Is criminal intent material in crimes mala prohibita?

A: It is hornbook doctrine in mala prohibita crimes that the only inquiry is whether the law has been violated. When the act is illegal, the intent of the offender is immaterial. We held in United States vs. Go Chico, 14 Phil. 128, (1909) that:

“It is not necessary that the appellant should have acted with criminal intent. In many crimes made such by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution.

In many cases, the act complained of is itself that which produces the pernicious effect the statute seeks to avoid. In those cases the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad. (Ampo vs. Court of Appeals, G.R. No. 1690991, February 16, 2006, 482 SCRA 562).

7. ANTI-FENCING LAW

Q: Convicted by the trial court for violation of Anti-Fencing Law, Bam argued for her acquittal on appeal, contending that the prosecution failed to prove that she knew or should have known that the jewelry recovered from her were the proceeds of the crime of robbery or theft. Is the defense valid?

A: NO. The defense is not valid because mere possession of any article of value which has been the subject of theft or robbery shall be prima facie evidence of fencing. The burden is upon the accused to prove that she acquired the jewelry legitimately. (Pamintuan vs. People, July 11, 1994)

8. What is an impossible crime? (1993; 2003)

A : It is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment, or on account of the employment of inadequate or ineffectual means. (Art. 4, par. 2)

But where the acts performed which would have resulted in an impossible crime also 1) constitute an offense under the RPC, or 2) would subject the accused to criminal liability although of a different category, the penalty to be imposed should be that for the latter and not that for an impossible crime.

IMPOSSIBLE    CRIME -   CRIME    AGAINST   PROPERTY

GEMMA   T.    JACINTO   vs.    PEOPLE    OF    THE    PHILIPPINES
G.R.   No.    162540,   July   13,    2009,   592    SCRA   426

FACTS: Gemma, a collector of Mega Foam, received a P10,000 check from Baby, a client of Mega. Instead of remitting the said collection, she gave the check to Gener, her brother-in-law, the latter deposited it to his bank account, however, the said check was dishonored by the bank due to lack of sufficient funds.

ISSUE: Whether Gemma is criminally liable for qualified theft.

HELD: NO. To be liable of the crime of qualified theft under Article 308 of the Revised Penal Code, the penalty to be imposed on the accused is dependent on the value of the thing stolen. Since Gemma unlawfully took the postdated check belonging to Mega Foam was subsequently dishonored, the same was apparently without value.

Gemma is guilty of impossible crime as defined in Article 4, paragraph 2 of the Revised Penal Code. At the time Gemma took possession of the check of Mega Foam, she had performed all the acts to consummate the crime of theft, which is a crime against property, had it not been impossible of accomplishment because it was apparently without value when it was subsequently dishonored.

SULPICIO INTOD vs. COURT OF APPEALS
G.R. No. 103119, October 21, 1992, 215 SCRA 52

Sulpicio intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended victim was not home at the time, no harm came to him.

He was found guilty of impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime against person.

AMERICAN   JURISPRUDENCE    OF    IMPOSSIBLE   CRIME

PEOPLE    vs.    LEE    KONG
21   L.R.A.   626 (1898)

The accused with intent to kill, aimed and fired at the spot where he thought public officer would be. It turned out, however, that the latter was in a different place.

STROKES vs. STATE
21 L.R.A. 898 (1898)

Where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place he was lying-in wait.

CLARK     vs.     STATE
17   S.W.   145 (1888)

          The      accused      with      intent     to     gain      entered      the     house      where     he     found      the      same      to      be      desolated      and      there       was       nothing       to      rob.

STATE    vs.    MITCHELL
71   S.W.   175   (1902)

Where the accused, with intent to kill, fired at the window of the victim’s room thinking that the latter was inside, however, at that moment, the victim was in another part of the house.

AMERICAN JURISPRUDENCE vs. PHILIPPINE JURISPRUDENCE

In the United States, where the offender sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied.

This is not true in the Philippines. In our jurisdiction, impossible crime is recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized itself. Furthermore, the phrase “inherent impossibility” that is found in Article 4 (2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubic lex non distinguit nec nos distinguere debemos.

9. When is the benefit of the Indeterminate Sentence Law not applicable? (1999; 2003)

A - The Indeterminate Sentence Law does not apply to:

1. Persons convicted of offenses punishable with death penalty or life imprisonment;

2. Those convicted of treason, conspiracy or proposal to commit treason;

3. Those convicted of misprision of treason, rebellion, sedition or espionage;

4. Those convicted of piracy;

5. Those who are habitual delinquents;

6. Those who shall have escaped from the confinement or evaded sentence;

7. Those who violated the terms of conditional pardon granted to them by the Chief Executive;

8. Those whose maximum term of imprisonment does not exceed one year;

9. Those who, upon approval of the law (December 5, 1933) had been sentenced by final judgment;

10. Those sentenced to the penalty of destierro or suspension.

Q: What is indeterminate Sentence?

A: It is a sentence with a minimum term and a maximum term, which the court is mandated to impose for the benefit of a guilty person who is not qualified therefore, when the maximum imprisonment exceeds one (1) year. It applies to both violations of Revised Penal Code and special laws.

Q: A public officer is convicted of falsification of official document penalized by prision mayor. There is one mitigating circumstance of voluntary surrender. What will be the indeterminate sentence?

A: MAXIMUM - prision mayor minimum, in its proper period after considering the mitigating circumstance.

MINIMUM - prision correctional, in any of its period or anywhere within the range of prision correctional without reference to any of its period.

Q: A was convicted of homicide penalized by reclusion temporal. There is an aggravating circumstance of nighttime which purposely sought by A to better accomplish his purpose. What will be the indeterminate sentence?

A: MAXIMUM - reclusion temporal in its maximum period after considering the aggravating circumstance.

MINIMUM - prision mayor in any of its period or anywhere within its range.

Q: What is the purpose of Indeterminate Sentence Law?

A: It is intended to favor the defendant in a criminal case particularly to shorten his term of imprisonment depending upon his behavior.

MONINA PUCAY vs. PEOPLE OF THE PHILIPPINES
G.R. No. 167084, October 31, 2006, 506 SCRA 411

The indeterminate penalty of 4 years and 2 months of prision correccional to 20 years of reclusion temporal, in addition to the payment of actual damages in the amount of P205,000.00. In this case, the penalty of prision correccional in its maximum period to prision mayor in its minimum period is the impossible penalty if the amount of the fraud is over P12,000 but not over P22,000. If the amount of the fraud exceeds for each additional P10,000. The total penalty, however, shall not exceed twenty years.

To get the maximum period of the indeterminate sentence, the total number of years included in the two periods should be divided into three. The division of the time included in the prescribed penalty should be divided into three equal periods of time, forming one period for each of the three portions. The maximum, medium and minimum periods penalty are therefore: Minimum period - 4 years, 2 months and 1 day to 5 years, 5 months, and 10 days; Medium period - 5 years, 5 months and 11 days to 6 years, 8 months and 20 days; and Maximum period - 6 years, 8 months and 21 days to 8 years. However, the total penalty should not exceed 20 years of imprisonment.

10. Distinguish instigation from entrapment. (1978; 1984; 1990; 1995; 2003)

A : Instigation takes place when a peace officer induces a person to commit a crime. Without the inducement, the crime would not be committed. Hence, it is exempting by reason of public policy. Otherwise, the peace officer would be a co-principal.

On the other hand, entrapment signifies the ways and means devised by a peace officer to entrap or apprehend a person who has committed a crime. With or without the entrapment, the crime has been committed already. Entrapment is not mitigating.

PEOPLE vs. YANG
423 SCRA 82 (2004)

INSTIGATION or inducement is committed when the law enforcers lure an Accused into committing the offense in order to persecute him. It is contrary to public policy and considered an absolutory cause.

PEOPLE vs. DORIA
G.R. No. 125299, January 22, 1999

The general rule is that it is no defense to the perpetrator of a crime that facilitates for its commission were purposely placed in his way, or that the criminal act was done at the ‘decoy solicitation’ of persons seeking to expose the criminal. Mere deception by the detective will not shield defendant, if the offense committed by him, free from the influence or instigation of the detective.

PEOPLE vs. RAMON QUIAOIT, JR.
G.R. No. 155094, July 30, 2007, 528 SCRA 474

The general rule is that instigation and inducement to commit a crime, for the purpose of filing criminal charges, is to be condemned as immoral, while entrapment, which is the employment of means and ways for the purpose of trapping and capturing the law breaker, is sanctioned and permissible. And the reason is obvious. Under the first instance, no crime has been committed, and to induce one to commit it makes the instigator a co-criminal. Under the last instance, the crime has already been committed and all that is done is to entrap and capture the law breaker.

11. What is the purpose of the Probation Law? (1986; 1989)

A: The purposes of the Probation Law are:

a. To promote the correction and rehabilitation of an offender by providing him with individualized treatment;

b. To provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and

c. To prevent the commission of offenses.

Q: What is probation?

A: Probation is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer.

Q: What are the circumstances when probation shall be denied?

A: Probation shall be denied if the court finds that:

1. The offender is in need of correctional treatment that can be provided effectively by his commitment to an institution;

2. There is undue risk of committing another crime;

3. Probation will depreciate the seriousness of the offense committed.

Q: Who are the offenders disqualified from being placed on probation?

A: The benefits of the Decree shall not be extended to those:

1. Sentenced to serve a maximum term of imprisonment of more than 6 years;

2. Convicted of subversion or any crime against the national security or the public order;

3. Previously convicted by final judgment of an offense punished by imprisonment of not less than 1 month and 1 day and/or fine not less than P200;

4. Who are already serving sentence at the time the substantive provisions of the Decree became applicable.

Q: What are the effects of violation of probation order?

A: Upon failure of the probationer to comply with any of the conditions prescribed in the order, or upon his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on probation.

Q: Ian was found guilty of violating Section 68 of PD 705, as amended (The Revised Forestry Code) for having in their possession forest products without the requisite permits. The trial court sentenced him to suffer the indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. He appealed the decision to the Court of Appeals which affirmed Ian’s conviction but reduced the penalty to an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to one (1) year, eight (8) months and twenty one (21) days of prision correccional, as maximum. Ian then filed an application for probation arguing that he only became eligible for probation after the Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed. Will Ian’s application for probation be granted?

A: NO, having appealed from the judgment of the trial court and having applied for probation only after the Court of Appeals had affirmed their conviction, Ian was clearly precluded from the benefits of probation. For sure, he never manifested that he was appealing only for the purpose of correcting a wrong penalty -- to reduce it to within probationable range. Hence, upon interposing an appeal, more so after asserting his innocence therein, Ian should be precluded from seeking probation. By perfecting his appeal, he ipso facto relinquished the alternative remedy of availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal. The filing of the application shall be deemed a waiver of the right to appeal. (Lagrosa vs. People, July 3, 2003).

URBANO MORENO vs. COMELEC
G.R. No. 168550, August 10, 2006, 498 SCRA 547

FACTS: Norma Mejes filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention. The Comelec granted her petition and disqualified Moreno.

Moreno filed an answer averring that the petition states no cause of action because he was already granted probation.

Allegedly, following the case of Baclayon vs. Mutia, the imposition of the sentence of imprisonment as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976, the final discharge of the probation shall operate to restore him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fined imposed.

However, the Comelec assails Sec. 40 (a) of the Local Government Code (LGC) which provides that those sentenced by final judgment for an offense involving moral turpitude or an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from running for any elective local position. Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and ends two (2) years thence. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elected local office.

On his petition, Moreno argues that the disqualification under the LGC applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the LGC because it is a special law which applies only to probationers. Further even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes as implied pardon of his previous misconduct.

ISSUE

Whether Moreno’s probation grants him the right to run in public office.

RULING

YES. Sec. 16 of the Probation Law provides that “the final discharge of the probationer shall operate to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted.” It is important to note that the disqualification under Sec. 40 (a) of the Local Government Code covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not disqualify probationers from running for a local elective office.

12. What is the doctrine of implied conspiracy? (1998; 2003)

A: The doctrine of implied conspiracy holds two or more persons participating in the commission of a crime collectively responsible and liable as co-conspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose or objective. The existence of a conspiracy shall be inferred or deduced from their criminal participation in pursuing the crime and thus the act of one shall be the act of all.

PEOPLE vs. HENRY TOGAHAN
G.R. No. 174064, June 8, 2007, 524 SCRA 557

From a legal standpoint, there is conspiracy if, at the time of the commission of the offense, the appellants had the same purpose and were united in its execution. Direct proof of previous agreement to commit a crime is not necessary. Conspiracy may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the appellants themselves when such acts point to a joint purpose or design, concerted action, and community of intent. Where conspiracy is established, the act of one is the act of all.

13. UNLAWFUL AGGRESSION

Q: Is threat or intimidation, the first element of self defense?

A: NO. Unlawful Aggression means an actual, sudden and unexpected attack on the life and limb of a person or an imminent attack on the life and limb of a person or an imminent danger thereof, and not merely a threatening or intimidating attitude. (Marzonia vs. People, 492 SCRA 636, June 26, 2006).

MANUEL ORIENTE vs. PEOPLE
G.R. No. 155094, January 30, 2007, 513 SCRA 348

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person -- not a mere threatening or intimidating attitude -- but most importantly, at the time the defensive action was taken against the aggressor. To invoke self-defense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.

14. Are reclusion perpetua and life imprisonment the same? Can they be imposed interchangeably? (1991; 1994; 2001)

A - NO. Reclusion perpetua is penalty prescribed by the RPC, with a fixed duration of imprisonment from 20 years and 1 day to 40 years, and carries with it accessory penalties.

Life Imprisonment, on the other hand, is a penalty prescribed by

special laws, with no fixed duration of imprisonment and without any accessory penalty.

15. What is a memorandum check? Is a person who issues a memorandum check without sufficient funds guilty of violating BP 22? (1994; 1995)

A: A memorandum check is an ordinary check with the word “Memorandum,” “Memo,” or “Mem” written across the check, signifying that the maker or drawer engages to pay its holder absolutely, thus partaking the nature of a promissory note. It is drawn on a bank and is a bill of exchange within the purview of Sec. 185 of the Negotiable Instrument Law.

A person who issued a Memorandum Check without sufficient funds is guilty of violating BP 22 as said law covers all checks whether it is an evidence of indebtedness, or in payment of a pre-existing obligation, or as deposit or guarantee.

Q: What are the elements of estafa thru false pretenses or fraudulent act by issuance of a post-dated check under par. 2 (d) Art. 315 of the Revised Penal Code as amended by RA 4885?

A: The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. It is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the non-payment of a debt. Deceit is the false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act

upon it to his legal injury. Concealment which the law denotes as fraudulent implies a purpose or design to hide facts which the other

party ought to have. The post-dating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act. (Recuerdo vs. People, 493 SCRA 532, June 27, 2006).

Q: Is good faith a valid defense in prosecution for estafa thru issuance of a post-dated check?

A: YES. There can be no estafa if the Accused acted in good faith because good faith negates malice and deceit. Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among another things, an honest belief, the absence of malice and the essence of design to defraud or to seek an unsconscionable advantage. An individual’s personal good faith as a concept of his own mind, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one’s right, ignorance of a superior claim and absence of intention to overreach another.

16. As a rule, if the offender in a criminal case is acquitted, his civil liability is also extinguished. What are the exceptions? (1975; 1984; 1988; 2000)

A - The exceptions to the rule that acquittal from a criminal case extinguishes civil liability are:

1. When the civil action is based on obligations not arising from the act complained of as a felony;

2. When acquittal is based on reasonable doubt or acquittal is on the ground that guilt has not been proven beyond reasonable doubt (Art. 29, NCC)

3. Acquittal due to an exempting circumstance, like insanity;

4. Where the court state in its judgment that the case merely involves a civil obligation;

5. Where there was a proper reservation for the filing of a separate civil action;

6. In cases of independent civil actions provided for in Arts. 31, 32, 33 and 34 of the New Civil Code;

7. When the judgment of acquittal includes a declaration that the fact from which the civil liability might arise did not exist.

8. Where the civil liability is not derived or based on the criminal action which the accused is acquitted.

*** Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely on the offense committed. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may also be predicated on a source of obligation other than delict, such as law, contracts, quasi-contracts and quasi-delicts. (People vs. Bayotas, G.R. 102007, September 2, 1994).

EMMA P. NUGUID vs. CLARITA S. NICDAO
G.R. No. 150785, September 15, 2006, 502 SCRA 93

FACTS: Respondent Clarita Nicdao is charged with having committed 14 counts of violation of BP 22. The criminal complaints allege that sometime in 1996, from April to August thereof, respondent Nicdao and her husband approached petitioner Emma Nuguid and asked her if they could borrow money to settle some obligations.

Having been convinced by the spouses Nicdao and because of the close relationship of Clarita Nicdao to Emma Nuguid, the latter lent the money. Thus, every month, she was persuaded to release P100k to the Spouses Nicdao until the total amount reached P1.15M.

As security, respondent Nicdao gave petitioner Nuguid 14 open dated checks with the assurance that if the entire amount is not paid within one year, Nuguid can deposit the checks.

In June 1997, petitioner Nuguid together with Samson Ching demanded payment of the same, but respondent Nicdao refused to acknowledge the indebtedness as she has fully paid the entire obligations. Thus, Nuguid deposited all the checks in the bank of Samson Ching totaling P1.15M. The checks were all returned for having drawn against insufficient funds (daif).

A verbal and written demand was made upon respondent Nicdao, but to no avail. Hence, a complaint for violation of BP 22 was filed against respondent.

MTC found respondent guilty of the charged against her. RTC affirmed. CA reversed the decisions of the lower courts and acquitted respondent Nicdao.

ISSUE

Whether respondent Nicdao remains civilly liable for the sum of P1,150,000.00.

RULING

NO. From the standpoint of its effects, a crime has a dual character: (1) as an offense against the State because of the disturbance of the social order and (2) as an offense against private person injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and others, wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime.

What gives rise to the civil liability is really the obligation of everyone to repair or to make whole the damage caused to another by reason of his act or omission, whether done intentionally or negligently and whether or not punishable by law.

Extinction of penal action does not carry with it the eradication of civil liability, unless the extinction from a declaration in the final judgment that the fact which the civil liability might arise did not exist.

Acquittal will not bar a civil action in the following cases: (1) where the acquittal is based on reasonable doubt as only preponderance of evidence is required in civil cases; (2) where the court declared the accused’s liability is not criminal but only civil in nature and (3) where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted.

On one hand, as regards the criminal aspect of a violation of BP 22, suffice it to say that “the gravamen of BP 22 is the act of making and issuing a worthless check or one that is dishonored upon the presentment for payment or make arrangement for its payment within 5 banking days from notice of dishonor.

DEATH OF THE ACCUSED PENDING APPEAL

ARTEMIO VILLAREAL vs. PEOPLE OF THE PHILIPPINES
G.R. No. 151258, February 1, 2012, 664 SCRA 519

FACTS: For the tragic death of Lenny Villa as a result of hazing initiation rites, 26 members of Aquila Legis were tried and convicted. On appeal before the Court of Appeals, only Artemio and Fidelito were found guilty beyond reasonable doubt of the crime of homicide. However, on petition before the Supreme Court, Artemio died.

ISSUE: Whether the death of Artemio would totally extinguish his criminal liabilities as well his pecuniary penalties.

HELD: YES. According to Article 89 (1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term “personal penalties” refers to the service of personal or imprisonment penalties while the term “pecuniary penalties” refers to fines and costs, including civil liability predicated on the criminal offense complained.

PEOPLE OF THE PHILIPPINES vs. ALFREDO MORALES
G.R. No. 206832, January 21, 2015, 747 SCRA 490

FACTS: Alfredo Morales was convicted of illegal sale and possession of dangerous drugs by the RTC and was affirmed by the CA.

While this case is pending appeal before the Supreme Court, Alfredo Morales died while committed at the Bureau of Corrections.

ISSUE: Whether the civil and criminal liability of the accused are extinguished.

HELD: YES. Under Article 89 (1) of the Revised Penal Code, criminal liability is totally extinguished: By the death of the convict, as to the personal penalties, and as to pecuniary penalties liability therefore is extinguished only when the death of the offender occurs before final judgment.

Ordinarily, both the civil and criminal liabilities are extinguished upon the death of the accused pending appeal of his conviction by the lower courts.

However, a violation of RA 9165 does not entail any civil liability. No civil liability needs extinguishment.

PEOPLE OF THE PHILIPPINES vs. DEMOCRITO PARAS
G.R. No. 192912, October 22, 2014, 739 SCRA 179

FACTS: Democrito Paras was charged with rape against AAA, a 17 year old minor. The RTC and the CA convicted the accused the penalty of reclusion perpetua.

On June 4, 2014, the SC promulgated its Decision, affirming the judgment of conviction against the accused-appellant.

However, Democrito Paras died on January 24, 2013 of pulmonary tuberculosis at the New Bilibid Prison. The said information was received only by the SC on August 27, 2014.

ISSUE: Whether the Supreme Court’s decision dated June 4, 2014 still valid in line with the death of accused-appellant.

HELD: NO. The Supreme Court’s decision dated June 4, 2014 had been ineffectual and therefore set aside. The criminal case against the accused must be also be dismissed.

In this case, when the accused-appellant died on January 24, 2013, his appeal to the SC was still pending. The Decision dated June 4, 2014 was thereafter promulgated as the SC was not immediately informed of the accused-appellant’s death.

The death of the accused-appellant herein, extinguished his criminal liability as well as his civil liability directly arising from and based solely on the crime committed.

CANCELLATION      OF     PAROLE      UPON
PENDENCY     OF     ANOTHER    CASE

ALEXANDER   ADONIS   vs.   DIRECTOR   VENANCIO   TESORO
G.R.   No.   182855,    June   5,   2013,   697   SCRA   337

FACTS: Adonis was convicted for libel and was sentenced to an indeterminate sentence of 5 months and 1 day to 4 years, 6 months and 1 day.

While he began serving his sentence, a second libel case was likewise filed against him.

Later, the Board of Pardons and Parole (BPP) issued an order for the discharge on Parole of Adonis.

In the meanwhile, the SC issued Administrative Circular No. 08-2000 setting the guidelines in the observance of a rule of preference in the imposition of fine in libel cases.

In view of these developments, Adonis filed with the RTC a Motion to Reopen Case praying for his immediate release from detention and for the modification of his sentence to payment of fine pursuant to the said circular.

The said motion was granted and he was allowed to post bail in the amount of P5,000.00.

After posting a cash bond, the order of the Court was served to Director Tesoro of the Davao Prisons and Penal Farm but the release of Adonis was not effected.

ISSUE: Whether Adonis is entitled to the benefit of a parole.

HELD: NO. While it is true that a convict may be released from prison on parole when he had served the minimum period of his sentence, the pendency of another criminal case, however, is a ground for disqualification of such convict from being released on parole.

NOVATION IS NOT A GROUND FOR EXTINCTION
OF CRIMINAL LIABILITY

NARCISO DEGAÑOS vs. PEOPLE OF THE PHILIPPINES
G.R. No. 162826, October 14, 2013, 707 SCRA 438

FACTS: Lydia, a jeweler, entered into an agreement with Narciso and Aida, whereas Aida gave instruction to Narciso to receive the jewelry and gold items for and in her behalf with the condition that she could not pay it in cash, she should return the unsold jewelry.

Narciso got the jewelry from Lydia after signing the pink receipts in her presence.

Narciso and Aida were able to pay only up to a certain point until receipt nos. 614 to 745 were no longer paid and Narciso failed to return the jewelry covered by such receipt. As a result, Narciso was charged of Estafa.

Narciso claims that his partial payments to Lydia novated his contract with her from agency to loan thereby converting his liability from criminal to civil.

ISSUE: Whether Narciso’s partial payments novated his liability from criminal to civil.

HELD: NO. The partial payments he made and his purported agreement to pay the remaining obligations did not equate to a novation of the original contractual relationship of agency to one of sale.

Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one that terminates the first, either by (1) changing the object or principal conditions; or (2) substituting the person of the debtor; or (3) subrogating a third person in the rights of the creditor.

Novation is not a ground under the law to extinguish criminal liability. Article 89 of the Revised Penal Code lists down the various grounds for the extinguishment of criminal liability.

SYNDICATED ESTAFA - ELEMENTS

JOSE RIZAL REMO et. al. vs. DOJ SEC. AGNES DEVANADERA
G.R. No. 192925, December 9, 2016, 813 SCRA 610

FACTS: In 2004, BATELEC II entered into two (2) contracts that required it to spend a total of P81,000,000,00.

The first contract was entered into by BATELEC II with the I-SOLV Technology, Inc. (ITI). The contract was for the enterprise-wide automation and computerization of BATELEC II at the cost of P75,000,000.00.

The second contract was with Supertrac Motors Corporation (Supertrac) for the procurement of ten (10) boom trucks by BATELEC II at the sum of P6,100,000.00.

In 2005, a NEA audit report found that ITI and Supertrac contracts as having been replete with various irregularities and violation of NEA guidelines.

Spurred by the audit report’s findings, the City Prosecutor found probable cause to hail petitioners who are directors of BATELEC II to court for syndicated estafa under PD 1689 based on Article 315 (1) (b) of the RPC.

ISSUES

1) Whether the directors of BATELEC II be considered a syndicate as contemplated under PD 1869.

2) Whether petitioners could have committed simple estafa.

RULINGS

1) NO. Syndicate must be five (5) or more persons who used the association that they formed or managed to defraud its own stockholders, members or depositors.

In the case of Galvez vs. CA, came up with the following standards:

1) They must be at least five (5) in number.

2) They must have formed or managed a rural bank, cooperative, “samahang nayon,” farmer’s association or any other corporation or association that solicit funds from the general public.

3) They formed or managed such association with the intention of carrying out an unlawful or illegal act, transaction or scheme, i.e. they used the very association that they formed or managed as the means to defraud its own stockholders, members and depositors.

There is no doubt that petitioners met the first and second standards. What is lacking on the part of the petitioners is the third standard.

Petitioners do not constitute a syndicate under PD 1689, as they never used BATELEC II as a means to defraud its members. The fraud committed through such association must pertain to its receipt of contribution.

As BATELEC II received the contributions of its members via legitimate transactions, it cannot be said that the petitioners had used the cooperative to commit fraud on any of its members.

Any alleged misuse of such contributions committed by petitioners after BETELEC II has already received them through legal means would not constitute as defraudation committed through the cooperative, but would merely be an act of mismanagement committed against it. Clearly then, the third standard of Galvez was not met.

2) NO. As directors of BATELEC II that approved the ITI and Supertrac contracts, petitioners did not receive funds of the cooperative. They don’t have juridical possession of Cooperative funds.

Juridical possession is the type of possession that is required by the transferee of a thing when he receives the same under the circumstances mentioned in Article 315 (1) (b) of the RPC. When juridical possession is acquired, the transferee obtain such right over the things that he can set up even against the owner.

In approving the ITI and Supertrac contracts, the petitioner merely exercises their prerogatives - as directors of the cooperative -- to enter into contracts that they deem to be beneficial for BATELEC II.

Though the petitioners may have committed certain lapses, errors in judgment or even violations of NEA guideline in making such approval, these do not have the effect of rendering the contracts with ITI and Supertrac illegal or void initio.

Hence, from a strictly legal perspective, any payments made by Batelec II pursuant to such contracts - backed as they were by the proper board approvals -- cannot be deemed a misappropriation or conversion of the cooperative’s funds.

17. Distinguish generic aggravating circumstance from qualifying aggravating circumstance. (1984; 1999)

A: Generic aggravating and qualifying circumstances are distinguished as to legal effect and weight, as follows:

1. A generic aggravating circumstance can be offset by an ordinary mitigating circumstance which is not so in a qualifying circumstance.

2. A qualifying circumstance cannot be proved unless alleged in the information whereas a generic aggravating circumstance may be proved even though not alleged.

3. A generic aggravating circumstance not offset has the effect of increasing the penalty to the maximum but not beyond that provided by law. A qualifying circumstance changes not only the nature but also the name of the crime and the offender becomes liable for the new offense which is more serious in nature.

18. What constitute a complex crime? Distinguish it from delito continuado and continuing offense. (1994; 2004; 2005)

A - A complex crime is constituted when a single act caused two or more grave or less grave felonies or when an offense is committed as a necessary means to commit another offense (Art. 48 RPC).

Delito continuado or continuous offense, on the other hand, is a term used to denote as only one crime a series of felonious acts arising from a single criminal resolution, not susceptible of division, which are carried out in the same place and at about the same time, and violating one and the same penal provision. The acts done must be impelled by one criminal intent or purpose, such that each act merely constitutes a partial execution of a particular crime, violating a common right, a common penal provision and impelled by a single criminal impulse.

Meanwhile, a continuing offense is one whose essential ingredients took place in more than one municipality or city, so much so that the criminal prosecution may be instituted and the case tried in the competent court of any one of such municipality or city.

The term “continuous/continued crime” or delito continuado and complex crime mandates that only one information should be filed against the offender, the term “continuing crime” is more pertinently used with reference to the venue where the criminal action may be instituted.

RAMISCAL, JR. vs. SANDIGANBAYAN
G.R. No. 169727-28, August 18, 2006, 499 SCRA 375

A continuous crime is a single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division, with each act in that series being merely the partial execution of a single delict. What is involved herein are several completed and distinct purported criminal acts which should be prosecuted as multiple counts of the same type of offense.

COMPLEX CRIME

ROBBERY    WITH    HOMICIDE

PEOPLE    OF     THE    PHILIPPINES    vs.    SONNY    GATARIN
G.R.   No.   198022,    April    7,   2014,    721    SCRA    16

FACTS: Howel was riding a bicycle on his way home when he saw Januario being mauled by two persons.

On the same night, SPO3 Mendoza and PO1 Coronel were performing their routine patrol duty when they met the accused who were running at a fast speed. The policemen chased them but they were unsuccessful in catching them.

As they continued their patrol, they saw Januario lying on the street, severely injured. While on the way to the hospital, SPO3 Mendoza asked Januario who hurt him. He answered that it was “Jay-R and his uncle” who stabbed him. Subsequently, Januario died due to the fatal wounds he has sustained.

Maria, the deceased’s wife, testified on the amount allegedly stolen from her husband. The accused allegedly took cash money amounting to P20,000 from Januario.

ISSUES

(1) Whether the complex crime of robbery with homicide is present in the case.

(2) Whether the crime committed instead is murder.

HELD: (1) NO. In order for the crime of robbery with homicide to exist, it must be established that a robbery has actually taken place and that, as a consequence or the occasion of robbery, a homicide is committed.

Mary’s testimony was offered by the prosecutor to prove that her husband was a victim of robbery with homicide. However, it can be inferred from her testimony that she obviously was not at the scene of the crime on that fateful night as she was only informed that the incident took place. It, likewise, appears that she had no personal knowledge that Januario was robbed. While she claimed that P20,000 was indeed taken from him, no evidence was presented to show that Januario indeed had that amount at that time and that the same was in his possession.

Assuming indeed that robbery was indeed committed, the prosecution must establish with certitude that a killing was a mere incident to the robbery. What is crucial for a conviction for the crime of robbery with homicide is for the prosecution to firmly establish the offenders’ intent to take personal property before the killing.

(2) YES. Abuse of superior strength attended the commission of the crime which qualifies the offense to murder. This qualifying circumstance is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which the latter selected or took advantage of in the commission of the crime.

In this case, Januario was then 54 years old while appellant was only 40 years old. Accused committed the crime with his nephew. Moreover, assailants were armed with a bladed weapon, while Januario was unarmed. These two accused were seen by Howel as the persons who mauled Januario.

PEOPLE OF THE PHILIPPINES vs. MARK JASON CHAVEZ
G.R. No. 207950, September 22, 2014, 735 SCRA 728

FACT: On August 19, 2011, the RTC found Chavez guilty beyond reasonable doubt of the crime of robbery with homicide.

On February 27, 2013, the CA affirmed the trial court’s decision.

The RTC has been established the following circumstances, first, that accused Chavez went to the parlor of the victim at around 1:00 o’clock in the morning of 28 October 2006 and was allowed by the victim to get inside his parlor.

Second, the victim’s two (2) units of cellular phones were declared as part of the missing personal belonging of the victim, were handed to SPO3 Casimiro by the mother of the accused on 05 November 2006 when the accused voluntarily surrendered accompanied by his mother at the police station.

Third, on 28 October 2006 at about 2:45 o’clock in the morning, witness Peñamante, who arrived from his work, positively identified the accused holding and/or carrying something and about to get out of the door of the house of the victim.

Finally, Dr. Salen’s finding that the body of the victim was dead for more or less twelve (12) hours when the victim was discovered fatally killed on 28 October 2006 and the time when the accused decided on 27 October 2006 to patch up things with the victim is not so co-incidence.

ISSUES

(1) Whether the prosecution has established that the accused is guilty of the crime of Robbery with Homicide.

(2) Whether an accused shall be released whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum imprisonment of the offense charged.

HELD: (1) NO. The prosecution has equally established, based on the circumstantial evidence, that the accused had indeed killed the victim.

It is imperative and essential for a conviction for the crime of robbery with homicide is for the prosecution to establish the offender’s intent to take personal property before the killing, regardless of the time when the homicide is actually carried out, otherwise, no accused can be convicted of robbery with homicide.

The circumstantial evidence relied by the lower courts, do not satisfactorily establish an original design by Chavez to commit robbery.

The 22 stab wounds in the front and back of the victim is a strong indication that assailants made sure of the success of their efforts to kill the victim without risk to themselves.

In the special complex crime of robbery with homicide, homicide is committed in order (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or (d) to eliminate witnesses to the commission of the crime.

22 stab wounds would be overkill for these purposes. The sheer number of stab wounds inflicted on Barbie makes it difficult to conclude an original criminal intent of merely taking Barbie’s personal property.

The prosecution proved beyond reasonable doubt the guilt of Chavez for the separate crime of homicide.

(2) YES. Whenever an accused has undergone preventive imprisonment for a period equal to the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal.

If the same is under review for purposes of immediate release, the computation of preventive imprisonment shall be the actual period of detention with good conduct allowance.

However, if the accused is absent without justifiable cause at any stage of the trial, the court may motu propio order the rearrest of the accused.

Finally excluded from this coverage are the recidivists, habitual delinquents, escapees and persons charged with heinous crimes.

In case the maximum penalty to which the accused may be sentenced is destiero, he shall be released after thirty (30) days of preventive imprisonment.

DIRECT     ASSAULT    WITH     MURDER

PEOPLE     vs.   EX   MAYOR   CARLOS    ESTONILO   SR.,   et.   al.
G.R.   No.   201565,    October    13,    2014,    738    SCRA    204

FACTS: On April 5, 2004, Floro Casas, while in the performance of his duty as District Supervisor of public schools, was shot to death seven (7) times by four (4) persons that caused his instant death.

After committing the crime, the assailants went to the vehicle of Mayor Estonilo, Sr. and told the latter “mission accomplished, sir” and thereafter the latter told them to escape.

ISSUE: Whether the crime committed was complex crime of direct assault with murder.

HELD: YES. When the assault results in the killing of a person in authority for that matter, there arises the complex crime of direct assault with murder.

As to fact of Direct Assault under Article 148 of the RPC, the elements are that (1) there must be an attack, use of force, or serious intimidation upon a person in authority; (2) the assault was made when the said person was performing his duties; and (3) the accused knew that the victim is a person of authority.

In this case, Floro Casas was the duly appointed District Supervisor of Public Schools, thus, was a person in authority and the attack or assault was made by reason of the performance of his duty as the District Supervisor.

As to the fact of Murder, the accused were proven guilty of the crime of Murder and clearly established that (1) Floro Casas was killed; (2) the five accused killed him; (3) the killing was attended by the qualifying circumstances of evident premeditation as well as treachery; and (4) the killing of Floro Casas was neither parricide nor infanticide.

The prosecution witness Servando testified that he was present on the two occasions when the accused were planning to kill Floro Casas. His categorical and straightforward narration proves the existence of evident premeditation.

Treachery also attended the killing of Floro Casas as he was successively fired seven (7) times and sustained 13 gunshot wounds giving him no chance at all to evade the attack and defend himself from the unexpected onslaught.

NO COMPLEX CRIME OF ARSON WITH HOMICIDE

PEOPLE OF THE PHILIPPINES vs. REYNALDO ABAYON
G.R. No. 204891, September 14, 2016, 803 SCRA 162

FACTS: In the evening of July 25, 2002, Abayon and his wife, Arlene quarreled outside their residence. Since they rented an apartment adjacent to others, their neighbors witnessed the entire incident.

On the same evening, Abayon’s neighbors heard a hissing sound and smelled leaking gas. When they came out to check, they saw Abayon holding an LPG gas tank outside his apartment. Abayon was also holding an unlit cigarette inserted between his left index and middle fingers and also match on his left arms. The neighbors then stopped Abayon from the prospective act.

At past midnight of July 26, 2002, the house where Abayon and his neighbors live, started to catch fire. As a result, the houses were completely burned down along with the personal effects of the residents. Three (3) persons also died because of the fire.

The RTC found Abayon guilty beyond reasonable doubt of the crime of arson resulting to multiple homicide and successfully established the elements of the crime charged through circumstantial evidence.

ISSUE

Whether there is a complex crime of arson with (multiple) homicide.

RULING

NONE. There is no complex crime of arson with homicide because the crime of arson absorbs the resultant death or is a separate crime altogether.

In People vs. Malngan, it was held that in cases both burning and death occur, in order to determine what crime/crimes were perpetrated -- whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the major objective of the malefactor:

a) 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 simply arson, and the resulting homicide is absorbed.

b) if, on the other hand, the main objective is to kill a particular person who may be in the building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is murder only; lastly,

c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a mean to cover up the killing, then there are two separate and distinct crimes committed -- homicide/murder and arson.

From the body of the information filed, Abayon is charged with the crime of arson because his intent was merely to destroy his family’s apartment through the use of fire. The resulting deaths that occurred, therefore should be absorbed by the crime of arson and only increases the imposable penalty to reclusion perpetua to death, pursuant to Section 3 of PD No. 1613.

19.     SPECIAL    COMPLEX    CRIME

WHERE     THE     PERSON     KIDNAPPED     IS      KILLED
IN     THE     COURSE       OF      DETENTION

PEOPLE OF   THE    PHILIPPINES   vs.    ARMANDO    DIONALDO    et.   al.
G.R.   No.   207949,   July   23,   2014,   731   SCRA   68

FACTS: Roderick dropped his brother Edwin off at the Health Is Wealth Gym. A text message from another brother told him that Edwin had been kidnapped. He received a phone call from Edwin’s kidnappers who threatened to kill Edwin if he should report the matter to the police and demanded P15M as ransomed money. Roderick told them he had no such money.

After negotiations, the kidnappers agreed to release Edwin for P110,000.00. Roderick was then instructed to bring the money to the kidnappers at the Libingan ng mga Bayani.

Subsequently, an orange Mitsubishi car pulled up in front of his vehicle. He saw one of the four men take a mobile phone and upon uttering the word “alat,” the men returned to their car and drove away.

During the course of the investigation, Rodolfo, an employee of the Health gym, confessed that he was part of the plan to kidnap Edwin, as in fact he tipped off the kidnappers on the conditions that he will be given a share in the ransom money.

Rodolfo gave information on the whereabouts of his cohorts leading to their arrest. The dead body of Edwin was found at Laurel, Batangas.

The RTC convicted the accused of kidnapping with serious illegal detention.

ISSUE: What is the crime committed by the accused in the instant case?

HELD: The accused are guilty of Special Complex Crime of Kidnapping for Ransom with Homicide under the last paragraph of Article 267 as amended by RA 7659.

Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, not to be treated as separate crime.

20. Justifying and exempting circumstances have some similar effects but are different concept. Discuss their similarities and distinctions. (1978; 2004)

A: In justifying circumstance, the act committed is lawful, and the actor does not incur any criminal liability nor civil liability. In an exempting circumstance, a crime is committed but there is absent in the person of the offender any of the elements of voluntariness, and so he is not criminally liable but is civilly liable except in the exempting circumstance of accident and lawful or inseparable cause.

PEOPLE vs. ISAIAS CASTILLO
G.R. No. 172695, June 29, 2007, 526 SCRA 215

“Accident” is an affirmative defense which the accused is burdened to prove, with clear and convincing evidence. The essential requisites for this exempting circumstance, are:

1. A person is performing a lawful act;

2. With due care;

3. He causes an injury to another by mere accident;

4. Without fault or intention of causing it.

21. Distinguish rebellion from coup d’etat. (1991; 2004)

A : Rebellion distinguished from coup d’etat:

As to overt acts. In rebellion, there is public uprising and taking up arms against the Government. In coup d’etat, public uprising is not necessary. The essence of the crime is a swift attack, accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Government, or any military camp or installation, communication network, public utilities or facilities needed for the exercise and continued possession of government power.

As to objective or purpose. In rebellion, the purpose is to remove from the allegiance of the Philippines, the whole or any part of the Philippines or any military or naval camps deprive the Chief Executive or Congress from performing their functions. In coup d’etat, the objective is to seize or diminish state powers.

As to participation, In rebellion, any person. In coup d’etat, any person belonging to the military or police or holding public office, with or without civilian participation.

VICENTE LADLAD vs. VELASCO
G.R. No. 172074-76 & 175013, June 1, 2007, 523 SCRA 318

Rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the government; and

2. That the purpose of the uprising or movement is either --

a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.

22. Is it necessary that the principal of a crime be convicted first before one may be found guilty and punished as an accessory? Explain. (1978, 1981).

A - It is not necessary that the principal be convicted before the accessory be found guilty and punished. Neither the letter nor the spirit of the law (Art. 19, RPC) requires that the principal be convicted before one may be punished as an accessory. As long as the corpus delicti is conclusively proved and the accessory’s participation is established, he can be held criminally responsible and meted the corresponding penalty.

23. Distinguish between recidivism and quasi-recidivism; habitual delinquency from recidivism. (1986; 1998)

A: In recidivism, the convictions of the offender are for crimes embraced in the same Title of the Revised Penal Code and this circumstance is generic aggravating and therefore can be offset by an ordinary mitigating circumstance. Whereas, in quasi-recidivism, the convictions are not for crimes embraced in the same title of the Revised Penal Code, provided that it is a felony that was committed by the offender before serving sentence by final judgment for another crime or while serving sentence for another crime and this circumstance is a special aggravating circumstance which cannot be offset by any mitigating circumstance.

Meanwhile, the distinctions between habitual delinquency and recidivism are the following:

1. In habitual delinquency, the crimes are specified, which are robbery, theft, estafa, falsification, serious and less serious physical injuries. In recidivism, the crimes are embraced in the same title of the Revised Penal Code.

2. In recidivism, no period of time is fixed between the former conviction and the last conviction. In habitual delinquency, conviction of any of the specified crimes must take place within 10 years from the last conviction or release.

3. In recidivism, it is enough that there be a second conviction of any crime embraced in the same title of the last or the first crime. In habitual delinquency, there must be at least a third conviction of any of the specified crimes.

4. Recidivism is an aggravating circumstance and if not offset, serves to increase the penalty. Habitual Delinquency provides for the imposition of additional penalty.

24. Brig. General Danilo Lim heads an elite Scout Ranger unit. In conspiracy with other military officers, he planned and decided to lead his men to an opposition rally and call for President Arroyo’s resignation. He was then arrested and charged with conspiracy to commit coup d’etat. If you were the judge, would you convict Gen. Lim and his co-conspirators? Why and why not?

A: If I were the judge, I will not convict Gen. Lim and his co-conspirators of the crime of conspiracy to commit coup d’etat. While Gen. Lim, a person belonging to the military is actually in conspiracy with other military officers, and their conspiracy is directed against duly constituted authority of the Philippines, in order to diminish if not to seize state power, their conspiracy was only to stage a rally that would call for the resignation of the President. It was not a conspiracy to make a swift attack, accompanied by violence, intimidation, threat, strategy, or stealth as in coup d’etat. Hence, conspiracy to commit coup d’etat was not committed. (Art. 136, RPC).

25. ANTI-TERRORISM LAW (RA 9372 – HUMAN SECURITY ACT OF 2007)

Q: Is mere conspiracy to commit terrorism a punishable offense?

A: YES. Persons who conspire to commit the crime of terrorism shall suffer the penalty of 40 years of imprisonment. (Sec. 40).

Q: When is there a conspiracy?

A: There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as Defined in Section 3 thereof and decide to commit the same.

Q: Is mere proposal to commit terrorism a punishable offense?

A: NO. The law punishes only conspiracy, not proposal to commit terrorism. A person who has decided to commit terrorism who proposes its execution to another person is not punishable under the law.

Q: What is the prescriptive period for the police officer to file criminal complaint for terrorism with the Public Prosecutor’s Office?

A: Within 30 days from the termination of the period granted by the Court of Appeals.

Q: Which Court may authorize to examine Bank deposits, accounts and records?

A: The Justices of the Court of Appeals designated as a special court to handle anti-terrorism.

Q: Are the provisions of Book 1 of the Revised Penal Code applicable to the Anti-Terrorism Law?

A: YES, by express provision of Sec. 52 of the law. The applicable penalties conform to the classification even under Book II of the Revised Penal Code. Terrorism is inherently evil, and is therefore a crime mala in se governed by the provisions of Book I of the Revised Penal Code.

26. P.D. 533 - ANTI-CATTLE RUSTLING LAW OF 1974

Conviction for cattle-rustling necessitates the concurrence of the following elements: (1) large cattle is taken; (2) it belongs to another; (3) the taking is done without the consent of the owner or raiser; (4) the taking is done by any means, method or scheme; (5) the taking is done with or without intent to gain; and (6) the taking is accomplished with or without violence or intimidation against persons or force upon things.

Considering that the gravamen of the crime is the taking or killing of large cattle or taking its meat or hide without the consent of the owner or raiser, conviction for the same need only to be supported by the fact of taking without the cattle owner’s consent. ( Pil-ey vs. People, G.R. No. 154941, July 9, 2007, 527 SCRA 76)

27.   ILLEGAL   POSSESSION   OF    FIREARMS

CELINO   vs.   COURT   OF   APPEALS
G.R.   No. 170562,   June   29,   2007,   526   SCRA   195

When the other offense involved is one of those enumerated under RA 8294, any information for illegal possession of firearms should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d’etat.

Conversely, when the other offense involved is not one of those enumerated under RA 8294, then the separate case for illegal possession of firearm.

28.   P.D.   705: FORESTRY     REFORM     CODE OF    THE PHILIPPINES

TIGOY   vs.   COURT   OF   APPEALS
G.R.   No.   144640,   June 26, 2006,   492   SCRA   539

There are two ways of violating the said Section 68 of PD 705: (1) by cutting, gathering and/or collecting timber or other forest products without a license; and (2) by possessing timber or other forest products without the required legal documents.

In offenses considered as mala prohibita or when the doing of an act is prohibited by a special law as in the present case, the commission of the prohibited act is the crime itself. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law and that it is done knowingly and consciously.

29. R.A. 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT

PEOPLE vs. DELANTAR
G.R. No. 169143, February 2, 2007, 514 SCRA 115

Section 5, Article III of RA 7610 punishes not only the person who commits the acts of sexual intercourse or lasciviousness conduct with the child but also those who engage in or promote, facilitate or induce child prostitution.

NAVARETTE vs. PEOPLE
G.R. No. 147913, January 31, 2007, 513 SCRA 509

The law covers not only a situation in which a child is abused for profit but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. The very title of Section 5, Article III (Child Prostitution and Other Sexual Abuse) of RA 7610 shows that it applies not only to a child subjected to prostitution but also to a child subjected to other sexual abuse. A child is deemed subjected to “other sexual abuse” when he or she indulges in lascivious conduct under the coercion or influence of any adult. Here, BBB was sexually abused because she was coerced or intimidated by petitioner (who poked her neck with a knife) to indulge in lascivious conduct.

FELINA ROSALDES vs. PEOPLE OF THE PHILIPPINES
G.R. No. 173988, October 8, 2014, 737 SCRA 592

FACTS: On February 13, 1996, seven year old Michael Ryan, a grade 1 pupil, was hurriedly entering his classroom when he accidentally bumped the knee of his teacher, Rosaldes, who was then asleep on a bamboo sofa.

Roused from sleep, Rosaldes asked Michael Ryan to apologize to her. Michael Ryan did not obey but instead proceeded to his seat. Rosaldes went to Michael and pinched him on his thigh, held him up by his armpits and pushed him to the floor causing him to hit a desk and, consequently, losing his consciousness.

Rosaldes contends that she did not deliberately inflict the physical injuries suffered by Michael Ryan to maltreat or malign him in a manner that would debase or degrade his dignity. She avers that her maltreatment is only an act of discipline that she as a school teacher could reasonably do towards the development of the child.

ISSUE: Whether Rosaldes is guilty of the crime of child abuse punishable under RA 7610.

HELD: YES. Rosaldes is guilty of violation of RA 7610. Although, as a school teacher, she could duly discipline Michael Ryan as her pupil, her infliction of the physical injuries on him was unnecessary, violent and excessive. The boy even fainted from the violence he suffered at her hands.

Section 3 of RA 7610 defines child abuse as maltreatment, whether habitual or not, of the child which includes any of the following: any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.

The act need not be habitual. The physical pain experienced by the victim had been aggravated by an emotional trauma that caused him to stop going to school altogether out of fear of Rosaldes, compelling his parents to transfer him to another school where he had to adjust again.

Such established circumstances proved beyond reasonable doubt that Rosaldes was guilty of child abuse by deeds that degraded and demeaned the intrinsic worth and dignity of Michael Ryan as a human being.

30. PARRICIDE (ART. 246 of the RPC)

ELEMENTS OF PARRICIDE

1. That a person is killed.

2. That the deceased is killed by the accused.

3. That the deceased is the father, mother or child, whether legitimate or illegitimate, or a legitimate other ascendant, or the legitimate spouse of the accused.

IMPORTANT NOTES ABOUT PARRICIDE

1. The relationship of the offender with the victim is the essential element of the felony.

2. Parents and children are not included in the term “ascendants” or “descendants”

3. The other ascendant or descendant must be legitimate. On the other hand, the father, mother or child may be legitimate or illegitimate.

4. The child should not be less than 3 days old, otherwise, the offense is infanticide.

5. Relationship must be alleged.

6. A stranger who cooperates in committing parricide is liable for murder or homicide.

7. Even if the offender did not know that the person he had killed is his son, he is still liable for parricide because the law does not require knowledge of the relationship.

31. R.A. 3019: ANTI-GRAFT AND CORRUPT PRACTICES ACT

ROLANDO VALDERAMA vs. PEOPLE OF THE PHILIPPINES
542 SCRA 423, G.R. No. 147578-85, January 28, 2008

To hold a person liable under Section 3 (e) of R.A. 3019, the concurrence of the following must be established beyond reasonable doubt by the prosecution:

(1) that the accused is a public officer or a private person charged in conspiracy with the former;

(2) that the said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions:

(3) that he or she causes undue injury to any party, whether the government or a private party;

(4) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

The Sandiganbayan found that petitioner participated directly in the malicious apprehension and impounding of the taxi unit of the respondent, causing him undue injury.

CONSPIRACY   OF    PUBLIC   OFFICER   WITH   PRIVATE   INDIVIDUAL

EDELBERT    C.   UYBOCO    vs.    PEOPLE   OF    THE   PHILIPPINES
G.R.   No.   211703,   December   10,   2014,   744    SCRA   688

FACTS: Uyboco, president of Gaikoku, and Valencia, a public officer, were found engaged in transaction wherein there was an overpayment of the purchase of dump trucks.

These dump trucks were directly imported by the Provincial Government from the distributor in Japan. With this direct importation, the Provincial Government should have only paid the tax-free amount of P4,594,119.85. Instead, Valencia had already authorized and caused the disbursement of P6,994,286 or an excess of P2,400,166.15 in favor of Uyboco’s company, Gaikoku.

This transaction clearly caused unjust injury to the government.

ISSUE: Whether Uyboco, a private individual, is liable for violation of RA 3019.

HELD: YES. Although a private individual, Uyboco has been found to have been in conspiracy with Valencia, who was then the provincial governor.

Under Section 3 (e) of RA 3019, it provides that an act shall constitute corrupt practices if any public officer may cause any unduly injury to any party including the Government or giving any private party unwarranted advantage or preference.

This transaction clearly caused unjust injury to the government.

32.    MALVERSATION      THROUGH     NEGLIGENCE

ESTEPA    vs.    SANDIGANBAYAN
182   SCRA   269,   G.R. No.    59670,   February   15,   1990

In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he did not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable officer may be convicted for malversation even if there is no direct evidence of personal misappropriation, where he has not been able to explain satisfactorily the absence of public funds involved. Under Article 217 of the Revised Penal Code, there is prima facie evidence of malversation where the accountable public officer fails to have duly forthcoming any public funds with which he is chargeable upon demand by duly authorized officer. As this Court has pointed out, this presumption juris tantum is founded upon human experience.

33.   BP 22    and     ESTAFA

ARTICLE     315   -    JUDICIAL     POSSESSION     INDISPENSABLE
IN     ESTAFA

MARGIE    BALERTA    vs.    PEOPLE   OF    THE    PHILIPPINES
G.R.   No.    205144,    November    26,    2014,    743    SCRA    166

FACTS: Margie worked as one of the three cashiers in BABMPC. She used to receive daily remittances, deposit to the bank, withdraw and issue loans in connection with Care Philippines account.

Upon internal audit, BABMPC found there was a discrepancy of P185,000 being kept allegedly by Margie.

Timonera, the manager of BABMPC, without the presence and permission of Margie, opened the table and drawers of Margie through the use of duplicate keys kept by De Asis, one of the three cashiers.

Margie reported the forced opening of her table and drawers to the police station. She also informed the police that the amount of P5,000 kept in the drawer was missing. More importantly, she can no longer find the receipts, vouchers and books in her drawers showing the cash advances of Timonera. Her plea for the conduct of an independent audit also fell on deaf ears.

The criminal complaint for estafa against Margie was filed on the basis of the findings of an internal auditor and not an independent accountant.

In the course of the trial, only Timonera appeared to testify. When the proceeding was concluded, both the prosecution and the defense did not formally offer any documentary evidence.

ISSUES

(1) Whether the accused is entitled to an acquittal considering that a cashier does not have juridical possession over the funds she holds.

(2) Whether her guilt had been proven beyond reasonable doubt.

HELD: (1) YES. There is no question that Margie was handling the funds lent by Care Philippines to BABMPC, however, she held the funds in behalf of BABMPC. Over the funds, she had mere physical or material possession, but she held no independent right or title, which she can set up against BABMPC. Margie was nothing more than a mere cash custodian, she had no juridical possession over the allegedly misappropriated funds as an element of the crime of estafa by misappropriation.

She did not have the sole access over the records and funds. Consequently, the authorship of the falsified entries in the passbook cannot be attributed with certainty to Margie alone.

Moreover, Timonera failed to state with certainty where in the records held by Margie were the discrepancies.

(2) NO. In a criminal case, the accused is entitled to an acquittal unless his guilt is shown beyond doubt.

At the outset, it is significant to point out that neither the prosecution nor the defense had made any formal offer of documentary evidence. The two passbooks, ledger and three demand letters, while mentioned by Timonera in his testimony, were not offered as evidence.

The contending parties each had one witness, namely, Timonera, for the prosecution and Margie, for the defense. Both of their testimonies were therefore without any corroboration. Considering the absence of formal offer of evidence, the judgment rendered by the RTC and the CA solely hinged on who was more credible between the two witnesses.

Timonera’s testimony is incredible, by itself alone and it is insufficient to discharge the burden of proof required for conviction in criminal cases.

Margie was indicted for allegedly misappropriating the amount of P185,584.06, however, Timonera failed to state with certainty where in the records held by Margie were the discrepancies shown. Timonera evaded answering the question by emphasizing that he is not an accountant and that Ambros knew more about the matter.

Hence, Margie did not have the sole access over the records and funds. Consequently, the authorship of the falsified entries in the passbook cannot be attributed with certainty to Margie alone. It was thus fatal for the prosecution’s cause that Ambros, the internal auditor, Asis, the cashier and the bank personnel did not take the witness stand especially since documentary evidence were never formally offered as well.

The RTC and the CA faulted Margie for not offering countervailing evidence, including an audit conducted in her own behalf. Still, it does not justify a conviction to be handed on the ground because the courts cannot magnify the weakness of the defense and overlook the prosecution’s failure to discharge the onus probandi.

Concededly, the evidence of the defense is weak and uncorroborated. This, however, cannot be used to advance the cause of the prosecution as the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.

Moreover, when the circumstances are capable of two or more inferences, as in this case, such that one of which is consistent with the presumption of innocence and the other is compatible with guilt, the presumption of innocence must prevail and the court must acquit.

BP 22 - ELEMENTS & REMEDIES

Evidence of knowledge of insufficiency of fund:

1. Making, drawing and issuance of check which is refused.

2. Prima facie evidence of knowledge of insufficiency of funds.

Requisites:

a) Check presented within 90 days.

b) Dishonored, and

c) Failure to make good the check within 5 banking days after receiving notice of dishonor.

** The presumption of knowledge can exist only after it is proved that the issuer had received the notice of dishonor. The prosecution must prove receipt, i.e., registered mail or authenticated signature on registry return receipt. The registry receipt alone is insufficient. Testimony or affidavit of person mailing the letter is registered. (Ting vs. CA (2000).

** Verbal notice of dishonor is insufficient. Must be written. (Domangsang vs. CA (2000).

** What the law prohibits is issuance. The purpose or conditions of issuance is immaterial. Issuance is malum prohibitum. That the check was issued as a guarantee is immaterial, unless the check was not issued for account or value. (Wong vs. CA (2001).

** BP 22 does not state that the issuer must maintain funds for only 90 days. That the check must be deposited within 90 days is merely one of the conditions for the presumption of knowledge of insufficiency. It is not an element of the offense. Where presentment was made after 90 days, only the presumption was lost. Knowledge could still be proven by evidence. By current banking practice, the check must be presented within 180 days. Afterwards it becomes stale. Presentment after 180 days is then a defense. (Wong vs. CA (2001).

** Absence of the notice merely prevents the presumption of knowledge of insufficiency. The prosecution must then prove knowledge with evidence. Thus, the nature is NOT a pre-requisite for a BP 22 prosecutions. (Young vs. CA (2005)

** Payee’s knowledge of insufficiency of funds is immaterial because deceit is not an element of BP 22. The exception is when there was no intention to apply said checks for account or for value. (Young vs. CA (2005).

** Responsibility under BP 22 is personal to the accused. Hence, the nature must also be personal. Thus, if the issuer is a corporation, notice to the corporation is not notice to the officer. (Marigomen vs. People (2005).

PAYMENT    OF    DISHONORED   CHECKS

ARIEL    T.    LIM    vs.    PEOPLE    OF    THE    PHILIPPINES
G.R.    190834,     November    26,    2914,   742    SCRA    684

FACTS: Ariel Lim issued two (2) checks dated June 30, 1998 and July 14, 1998 payable to CASH in the amount of P100,000 each to Willie Castor as his campaign donation to the latter’s candidacy.

It was Castor who ordered the delivery of printing materials and used Ariel Lim’s checks for payment of the same. Due to late delivery of printing materials, Castor instructed Ariel Lim to issue a “Stop Payment” order for the two checks.

The checks were dishonored by the bank because of said order and that said checks were drawn against insufficient funds.

Private complainant sent two demand letters to Ariel Lim and filed complaint against Lim before the Office of the Prosecutor.

After the lapse of more than one month from receipt of the demand letters, and upon receipt of the subpoena from the Office of the Prosecutor, Ariel Lim issued a replacement check in the amount of P200,000. Private complainant was able to encash said replacement check.

Six months after Ariel Lim had paid the amount of the bounced check, two informations were filed against him before the MeTC of Manila.

ISSUE: Whether the accused would still be penalized for violation of BP 22 after having paid the amount of the checks upon receipt of a subpoena from the Office of the City Prosecutor.

HELD: NO. The fact that the issuer of the checks had already paid the value of the dishonored checks after having received the subpoena from the Office of the Prosecutor should have forestalled the filing of the information in court.

The spirit of the law which, for B.P. 22, is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently made amends for their mistakes and made restitution for damages even before charges have been filed against them.

In effect, the payment of the checks before the filing of the information has already attained the purpose of the law.

MARCIANO TAN vs. PHIL. COMMERCIAL INTERNATIONAL BANK
G.R. No. 152666, April 23, 2008, 552 SCRA 532

FACTS: Marciano applied for a Letter of Credit with PCIB for the importation of four tourist buses with a total value of US$430,000.

The parties entered into a trust receipt agreement with PCIB as trustor and Marciano as entrustee.

When the tourist buses arrived, Marciano issued 14 postdated checks. Of the 14 checks, only the first five checks were honored, the other nine checks were dishonored in the amount of P1,785,855.75.

Marciano having suffered financial reverses, availed of Section 7 of the Trust Receipt by surrendering the buses to PCIB. At the time of surrender, the buses were estimated to be “about 6.6 million pesos.”

Subsequently, PCIB sent Marciano a demand letter and followed by a criminal complaint for violation of B.P 22.

ISSUE: Whether the accused would still be liable for violation of BP 22 after PCIB had received and keeping in possession the four buses pursuant to Section 7 of the Trust Receipt.

HELD: NO. PCIB already exacted its proverbial pound of flesh by receiving and keeping in possession the four buses - trust properties surrendered by Marciano pursuant to Section 7 of the Trust Receipt Agreement.

The estimated value of the surrendered buses was “about P6.6 million” while the amount of the dishonored checks was P1,785,855.75. It is clear that Marciano had more than fully satisfied the amount of dishonored checks prior to the receipt of the demand letter from PCIB.

In keeping with jurisprudence, the Court then considers such payment of the dishonored checks to have obliterated the criminal liability of the accused.

While issuing of a bouncing check is malum prohibitum, the prosecution is not excused from its responsibility of proving beyond reasonable doubt all the elements of the offense.

Respecting the second element of the crime, the prosecution must prove that the accused knew, at the time of issuance, that he does not have sufficient funds or credit for the full payment of the check upon its presentment.

GEOFFREY F. GRIFFITH vs. COURT OF APPEALS
G.R. No. 129764, March 12, 2002, 379 SCRA 94

FACTS: Griffith, president of Lincoln - Gerald, Inc., incurred rental arrearages and issued two (2) post-dated checks in favor of Phelp Dodge.

Due to four - week labor strike that paralyzed the business operation of Lincoln – Gerald, the checks issued were not funded and in so doing, the checks when presented to the drawee bank for payments were dishonored on the ground of drawn against insufficient funds.

Phelp Dodge foreclosed the properties of Lincoln – Gerald and at the sale on public auction, the former realized a proceeds more than the value of the two (2) checks issued.

A criminal case for violation of BP 22 was filed against Griffith where the latter was convicted by MeTC, sustained by RTC and affirmed by CA.

ISSUE: Whether the debtor’s president would still answer for a criminal offense under BP 22 after two years the creditor had collected more than sufficient to cover the value of checks dishonored.

HELD: NO. The checks were dishonored and Phelp Dodge filed criminal cases for violation of BP 22 against Griffith. But this filing took place only after Phelp Dodge had collected the amount of the checks, with more than one million pesos to spare, through notarial foreclosure and auction sale of Lincoln - Gerald properties earlier impounded by the Phelp Dodge.

The Bouncing Check Law was designed to safeguard the interest of the banking systems and the legitimate public checking account user. It was not designed to favor or encourage those who seek to enrich themselves through manipulation and circumvention of the purpose of the law.

We must find if the application of the law is consistent with the purpose of and reason of the law.

“Ratione cessat lex, et cessat lex” means that “when the reason for the law ceases. It is not the letter alone but the spirit of the law also that gives it life.

PROOF    OF    NOTICE    OF    DISHONOR

MA.   ROSARIO   P.    CAMPOS   vs.   PEOPLE   OF   THE   PHILIPPINES
G.R.   No. 187401,   September   17,   2014,   735   SCRA    373

FACTS: Campos obtained a loan from FWCC payable on installments. She issued several post-dated checks in favor of FWCC to cover the agreed installment payments.

Fourteen (14) of these checks, however, were dishonored when presented for payment with the drawee bank on the basis of “closed account.”

After Campos failed to satisfy her outstanding obligation with FWCC despite demand, she was charged before the MTC with violations of B.P. 22.

The MTC, RTC and CA found Campos guilty of 14 counts of violations of BP 22 and found that the required Notice of Dishonor for FWCC was received by Campos.

Campos denies having received a notice of dishonor from FWCC and categorically declared that “she has in her favor evidence to show that she was in good faith and indeed made arrangements for the payment of her obligations subsequently after the dishonor of the checks.”

ISSUE: Whether the notice of dishonor was received by the accused.

HELD: YES. The mere presentation of registry return receipts that cover registered mail was not sufficient to establish that written notices of dishonor had been sent to or served on issuer of checks. The authentication by affidavit of the mailers was necessary in order for service by registered mail to be regarded as clear proof of giving of notice of dishonor and to predicate the existence of the second element of the offense.

Campos’ declaration that she subsequently in good faith made arrangement for the payment of her obligation after the dishonor of the checks was a confirmation that she actually received the notice of dishonor from FWCC. Campos 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.

Jurisprudence has emphasized the importance of proof of receipt of such notice of dishonor, although not as an element of the offense, but as a means to establish that the issuer of a check was aware of insufficiency of funds when he issued the check and the bank dishonored it, in relation to the second element of the offense and Section 2 of BP 22 which creates a presumption of knowledge of insufficiency of funds.

BP 22 TO CONSTITUTE ESTAFA

To constitute estafa under this provision, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation, and as such it should be either prior to or simultaneous with the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of a check whether postdated or not. That is, the latter would not have parted with his money or other property were it not for the issuance of the check.

34. LIBEL - ARTICLE 354 OF RPC

ELIZALDE S. CO vs. LUDOLFO P. MUÑOZ, JR.
G.R. No. 181986, December 4, 2013, 711 SCRA 508

FACTS: In several interviews with radio stations in Legazpi City, Muñoz, a contractor, revealed the anomalous government bidding as a call of public duty of Elizalde Co, who is a public figure considering his participation in government projects and his prominence in the business circles.

Muñoz claimed that the imputation dealt with matters of public interest and thus, a privileged communication.

ISSUE: Whether Muñoz be held liable for libel.

HELD: NO. In libel, the existence of malice is essential as an element of the crime.

Article 354 of the RPC states that malice is not presumed when (1) a private communication made by any person to another in the performance of any legal, moral or social duty; (2) fair and true reports, made in good faith, without any comments or remarks of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings or any other act performed by public officers in the exercise of their functions.

Muñoz’ statements were protected as privileged communications considering that Co is a public figure and as such, Co is subject to criticisms on his acts that are imbued with public interest.

ALFONSO LAGAYA vs. PEOPLE & MARILYN MARTINEZ
G.R. No. 176251, July 25, 2012, 677 SCRA 478

FACTS: Dr. Lagaya issued a memorandum addressed to the HPPs Plant Managers and Staff and distributed to the different plants all over the country against Dr. Martinez about “Disclosure and Misuse of Confidential and Classified Information” and a salient portion thereof states that Dr. Martinez needs to undergo psychological and psychiatric treatment to prevent deterioration of her mental and emotional stability.

On account of the issuance of the memorandum, Dr. Martinez claimed that she was exposed to public ridicule and humiliation.

ISSUE: Whether the subject memorandum libelous.

HELD: YES. The subject memorandum dealt more on the supposedly abnormal behavior of Dr. Martinez which to an ordinary reader automatically means a judgment of mental deficiency.

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary which tends to dishonor or discredit or put her in contempt.

The element of malice was also present when the right of Dr. Martinez’ reputation was injured by the defamatory imputation.

35. QUASI OFFENSES - Reckless Imprudence Resulting in Physical Injuries

DR. FERNANDO SOLIDUM vs. PEOPLE OF THE PHILIPPINES
G.R. No. 192123, March 10, 2014, 718 SCRA 263

FACTS: Gerald was born with imperforate anus. Two days after his birth, he underwent colostomy, a surgical procedure to bring one end of the large intestine out the abdominal wall, enabling him to excrete through a colostomy bag attached to the side of his body.

When Gerald was already three years old, he was admitted at Ospital ng Maynila for a pull-through operation. Dr. Solidum assisted the surgical team as one of the anesthesiologists.

During the operation, Gerald experienced bradycordia and went into a coma. His coma lasted for two weeks but he regained consciousness only after a month. He could no longer see, hear or move.

Agitated by her son’s helpless and unexpected condition, Luz lodged a complaint for reckless imprudence resulting in serious physical injuries against the attending physicians.

ISSUE: Whether Dr. Solidum be held criminally liable under the principle of Res Ipsa Loquitor.

HELD: NO. The principle of Res Ipsa Loquitor is not applicable in this case. It is necessary to prove by competent evidence the following elements:

1. the duty owed by the physician to the patient as created by the physician-patient relationship.

2. the breach of duty by the physician’s failing to act in accordance with the applicable standard of care;

3. there must be a reasonable close and casual connection between the negligent act or omission and the resulting injury; and

4. the damages suffered by the patient.

There is no definition of the duty of a particular physician in a particular case exists and the standard of care must be determined in every case, with the judge weighing the testimonies of experts on both sides to ultimate determine the standard, on the trier of facts.

36. THEFT - Crime Against Property

WORDWIDE   WHITE   WEB   CORPORATION   vs.   PEOPLE    &   PLDT
G.R.   Nos.   161106/161266,    January   13,   2014,   713   SCRA   18

          Use     of     Communications      facilities     without    consent      constitutes     theft.

          For      theft     to    be     committed    in      this     case,    the     following     elements    must    be     shown    to     exist:

     (1)    the     taking    by     petitioner;

     (2)   of      PLDT ‘s     personal    property;

     (3)   with      intent    to     gain;

     (4)   without     the     consent     of     PLDT;

     (5)   accomplished      without     the     use     of     violence    against    or   intimidation     of     persons     or     the    use     of     force    upon    things.

In the light of Laurel vs. Abrogar, it was held that the use of PLDT’s communications facilities without its consent constitutes theft of its telephone services and business.

It is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business.

37.     FALSIFICATION   OF     PUBLIC     DOCUMENT

CRIME    INVOLVING    MORAL    TURPITUDE

CECILIA    PAGADUAN   vs.   CSC   &   REMA   MARTIN   SALVADOR
G.R.   No. 206379,    November    19,   2014,    741    SCRA    334

FACTS: Cecilia filed a complaint with CSC against Rema on the ground of falsification and misrepresentation of facts indicated in her Personal Data Sheet (PDS). The CSC found Rema to be liable for simple misconduct, ruling that her act was mere error of judgment. As a penalty, Rema was suspended for one (1) month. Cecile ceased her pursuit and did not appeal the CSC decision.

Prior to CSC order, Cecile filed a criminal charge against Rema with the MTCC for falsification of public documents for making false statements in her PDS. Later, MTCC found Rema guilty of the crime charged. Rema did not appeal and then applied for probation. Her application was granted and she was placed under probation for a period of one (1) year.

By reason of the said conviction, Cecile filed the second administrative complaint for the offense of conviction of a crime involving moral turpitude.

The CSC and CA ruled that Rema’s misrepresentation was merely an error of judgment and no moral turpitude is involved.

ISSUES

(1) Whether Rema was convicted of a crime involving moral turpitude.

(2) Whether her conviction and eventual discharge from probation prevent another administrative case to be filed against her.

HELD: (1) YES. Not every criminal act, however, involves moral turpitude. The crime of falsification of public document is contrary to justice, honesty and good morals and therefore, involves moral turpitude.

The court found that she made an untruthful statements in a narration of facts and perverted the truth with a wrongful intent.

Considering that the principal act punished in the crime of falsification of public document is the violation of the public faith and the destruction of truth as therein solemnly proclaimed, the elements of the administrative offense of conviction of a crime involving moral turpitude clearly exist in this case.

(2) NO. Probation does not erase the effects and fact of conviction, but merely suspends the penalty imposed.

The purpose of the Probation Law is to save valuable human material, unlike pardon, probation does not obliterate the crime for which the person under probation has been convicted.

The reform and rehabilitation of the probation cannot justify her in the government service. Furthermore, probation only affects the criminal liability of the accused and not her administrative liabilities, if any.

FAILURE TO   PROVE   THE   PERPETRATOR   OF THE   CRIME

FELIX   L.   ARRIOLA   vs.   PEOPLE   OF   THE   PHILIPPINES
G.R. No. 217680,   May 30, 2016, 791 SCRA 478

FACTS: Arriola occupied the position of an accountable officer at the City Hall who held the responsibility of requisitioning CTCs. He had five (5) employees under him who issued the CTCs to individual taxpayers from the booklets he issued to them for such purpose. Such booklets were under Class “A” at the cost of P5.00 each. After receiving the amount of P250.00 from each booklet from his employees, he immediately remitted the same to the Office of the City Treasurer.

Meanwhile, Gregg Business Agency needed to procure Community Tax Certificates (CTCs) for 21 of its clients. Pagapong, its Liaison Officer, was instructed to coordinate with a certain “Girlie Moore” to obtain the same. Moore personally visited the agency to get the names of the clients after receiving the amount of P38,500.00 to process the CTCs.

After frequent follow-ups, Pagapong was able to obtain from Girlie Moore the CTCs at the City Hall. As soon as she received the CTCs, she proceeded to the Releasing Area of the Treasurer’s Office to secure Order of Payment and presented the CTCs as a requirement and upon verification, the CTCs were found to be fake or falsified. So Pagapong was subjected to investigation.

Further verifications from the records disclosed that the CTCs with the same serial numbers were requisitioned by and issued to Arriola, Local Operations Officer I.

The RTC convicted Arriola of 21 counts of the crime of Falsification of Public Documents based on circumstantial evidence and the same was affirmed by the CA on appeal.

I S S U E S

(1) Whether Arriola being an accountable officer is guilty of the crime of Falsification of public document.

(2) Whether the circumstantial evidence adduced by the prosecution failed to evoke the moral certainty that Arriola was guilty.

(3) Supposing Arriola had actually participated in the commission of the crime, could he be convicted if the circumstantial evidence is plainly inadequate and unconvincing?

R U L I N G S

(1) NO. Every criminal conviction requires the prosecution to prove two things: a) the fact of the crime, that the presence of all the elements of the crime with which the accused stands charged, and b) the fact that the accused is the perpetrator of the crime.

When a crime is committed, it is the duty of the prosecution to prove the identity of the perpetrator even if the commission of the crime is established.

In the case at bench, the State, aside from showing the existence of the crime of falsification of public document, has the burden of correctly identifying the author of such crime. Both facts must be proven beyond reasonable doubt on the strength of the prosecution evidence and without solace from the weakness of the defense.

(2) YES. It is true that conviction is not always based on direct evidence for it may also rest purely on circumstantial evidence.

The settled rule is that a judgment of conviction based purely on circumstantial evidence can be upheld only if the following requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.

The corollary rule is that the circumstances proven must constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of others, is the guilty person.

The circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that he is innocent and with any other rationale hypothesis except that of guilt.

On the basis of these principles, the circumstantial evidence of the prosecution failed to muster the quantum of proof required in criminal cases - guilty beyond reasonable doubt. Moreover, the circumstances enumerated by the trial court did not completely discount the possibility that other than Arriola, another person or persons could have falsified the subject CTCs.

There was no showing either that the replicas of the Class A CTC, which Girlie Moore delivered to Pagapong, came from Arriola, or that he was the one who actually made the duplicates. These gaps in the prosecution account spawn doubts in the mind of a reasonable person. Verily, there was no concrete prosecution evidence that would link Arriola to the falsification.

(3) NO. Supposing that Arriola had actually participated in the commission of the crime. The Court, cannot convict him when the circumstantial evidence relied upon by the RTC and subscribed to by the CA is plainly inadequate and unconvincing. Thus, it cannot be said that the prosecution was able to prove his guilt beyond reasonable doubt.

And where there is a reasonable doubt as to the guilt of an accused, he must be acquitted even though his innocence may be questioned, for it is not sufficient for the proof to establish a probability even though strong, that the fact charged is more likely to be true than the contrary.

Proof beyond reasonable doubt, more than mere likelihood, requires moral certainty - a certainty that convinces and satisfies the reason and conscience of those who are to act upon it.

38.     ART.    218 -    FAILURE   TO    RENDER   ACCOUNTS

CRIMES     COMMITTED   BY    PUBLIC     OFFICERS

ALOYSIUS     DAIT   LUMAUIG   vs.   PEOPLE   OF   THE   PHILIPPINES
G.R.   No. 166680,    July   7,   2014,   729    SCRA    191

FACTS: In 1994, Mayor Lumauig of Alfonso Lista obtained a cash advance of P101,736.00 intended for the payment of freight and insurance coverage of 12 units of motorcycles to be donated to the municipality by the City of Manila.

However, instead of motorcycles, he was able to secure two buses and five patrol cars. It never came to his mind to settle or liquidate the amount advanced since the vehicles were already turned over to the municipality.

He claimed that he was neither informed or did he receive any demand from COA to liquidate his cash advances. It was in 2001 while he was claiming for separation pay when he came to know he still has an unliquidated cash advance.

And so as not to prolong the issue, he paid the amount of P101,736.00 to the municipal treasurer, for which reason, the incumbent Mayor Prudenciano executed an Affidavit of Desistance.

The Sandiganbayan acquitted Lumauig for the violation of RA 3019 but convicted him for the felony of Accountable Officer to Render Accounts under Art. 218 of the Revised Penal Code.

ISSUES

(1) Whether the acquittal under RA 3019 a bar to his conviction under Art. 218 of RPC.

(2) Whether prior demand is a requisite for conviction under Article 218 of the RPC.

HELD: (1) NO, acquittal from violation of RA 3019 is not a bar against conviction for Article 218 of the RPC.

It is undisputed that the two charges stemmed from the same incident. However, the Supreme Court has consistently held that the same act may give rise to two or more separate and distinct charges.

The elements of the felony punishable under Article 218 of the 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 COA or to a provincial auditor; and

(4) that he fails to do so for a period of two months after such account should be rendered.

(2) NO, demand is not element of the offense and that it is sufficient that there is a law or regulation requiring the public officer to render an account.

Since Lumauig received the subject cash advance sometime in 1994, he was, thus, required to liquidate the same on or before January 20, 1995. Further, to avoid liability under Article 218, he should have liquidated the cash advance two months from the time it was due, or on before March 20, 1995.

In the case at bar, Lumauig liquidated the subject cash advance only on June 4, 2001. Hence, as correctly found by the Sandiganbayan, he was liable for violation of Article 218 because it took him over six years before settling his accounts.

Considering the two mitigating circumstances of voluntary surrender and return or full restitution of the funds, Lumauig is sentenced to a straight penalty of four months and one day of arresto mayor.

39.      ARTICLE    335     -     RAPE

PREGNANCY    IS    NOT   AN    ELEMENT    OF    RAPE

PEOPLE    OF    THE    PHILIPPINES    vs.   DEMOCRITO    PARAS
G.R.   No.   192912,    June   4,    2014,    724    SCRA    691

FACTS: While AAA was weeding grass at her employer’s farm, Paras approached her from behind. He pulled AAA towards the lower portion of the farm and pointed a short firearm at her mouth. AAA struggled and tried to kick but proved futile as Paras was physically stronger.

Since AAA was afraid of Paras and that she was also afraid to kill a person, she did not strike him with the bolo she was holding. While struggling, AAA even threw stones at the accused. As a result of such incident, AAA got pregnant.

ISSUES

(1) Whether the accused is guilty of the crime of rape.

(2) Whether pregnancy is an essential element of rape.

HELD: (1) YES, the accused is guilty of rape by having carnal knowledge of AAA without her consent using force or intimidation.

The court a quo relied on the testimony of AAA and her positive identification of the accused. AAA was indeed categorical who pointed a gun to her mouth and forcibly had sexual intercourse with her.

(2) NO. Pregnancy is not an essential element of the crime of rape. Whether the child which the rape victim bore was fathered by the accused or by some unknown individual is of no moment. What is important and decisive is that the accused had carnal knowledge of the victim against the latter’s will or without her consent, and such fact was testified to by the victim in a truthful manner.

40    -   ARTICLE   352   -   PERFORMANCE    OF    ILLEGAL
                                                   MARRIAGE   CEREMONY

RENE    RONULO     vs.    PEOPLE    OF    THE    PHILIPPINES
G.R.   No. 182438,    July   2,   2014,    728   SCRA   675

FACTS: Joey and Claire were scheduled to marry each other at Sta. Rosa Catholic Church. However, on the day of wedding, Fr. Ragaza refused to solemnize the marriage upon learning that the couple failed to secure a marriage license.

As recourse, Joey and Claire, together with their parents, sponsors and guests, proceeded to the Independent of Aglipayan Church. They requested Priest Ronulo to perform a ceremony to which the latter agreed despite having been informed by the couple that they have no marriage license.

Fr. Ronulo conducted the ceremony in the presence of the groom, the bride, the parents, the sponsors and invited guests.

ISSUE: Whether Ronulo is guilty of violating Article 352 of the RPC on solemnizing illegal marriage.

HELD: YES. Fr. Ronulo is guilty of violating Article 352 of the RPC on solemnizing illegal marriages. The elements of the crime are as

follows: (1) that the accused has the authority of the solemnizing officer; and (2) that he performs an illegal marriage ceremony. In the present case, Fr. Ronulo admitted that he has authority to solemnize marriage.

The law sets the minimum requirements constituting a marriage ceremony: first, there should be the personal appearance of the contracting parties before a solemnizing officer; and second, their declaration in the presence of not less than two witnesses that they take each other as husband and wife.

As to the first requirement, Fr. Ronulo admitted that the parties appeared before him. Second, the contracting parties personally declared that they take each other as husband and wife.

Undoubtedly, Fr. Ronulo conducted the marriage ceremony despite knowledge that the essential and formal requirements set by law were lacking as the couple had no marriage license.

The marriage ceremony, therefore, was illegal. Fr. Ronulo’s knowledge of the absence of these requirements negates his defense of good faith.

41       ARTICLE    151   -    RESISTING     ARREST     AND
                                                       DISOBEDIENCE

RA   - ANTI-DRUNK   AND   DRUGGED   DRIVING   ACT   OF   2013

EDMUND     SYDECO    vs.    PEOPLE   OF   THE   PHILIPPINES
G.R.   No.   202692,    November   12,   2014,   740   SCRA    288

FACTS: Edmund, together with the cook and waitress of his restaurant, were on their way home on board his pick up when police officers manning a checkpoint signaled them to stop.

According to the policemen, they spotted that his vehicle had been swerving and this prompted them to flag it down. They asked Edmund to alight from the vehicle so that he could take a rest at the police station situated nearby before he resumes driving.

Their flashlights trained up inside of the vehicle and its occupants, the policemen then asked Edmund to open the vehicle’s door and alight for a body and vehicle search, a directive he refused to heed owing to a previous extortion experience. Instead, he opened the vehicle’s window, uttering, “plain view lang boss, plain view lang.”

Obviously irked by this remark, one of the policemen, P/Insp. Aguilar then told Edmund that he was drunk pointing to three cases of empty beer bottles in the trunk of the vehicle.

Edmund’s explanation about being sober and that the empty bottles adverted to came from his restaurant was ignored as P/Insp. Aguilar suddenly boxed him in the mouth, poked a gun at his head and blurted curse words against him. The officers then pulled Edmund out of the driver’s seat and pushed him into the police mobile car. The policemen then brought Edmund to a hospital when they succeeded in securing a medical certificate depicting Edmund as “positive” of alcoholic breath.

ISSUES

(1) Whether the elements of resistance and serious disobedience under Art. 151 RPC present in the instant case.

(2) Whether the accused Edmund be held liable under new RA 10586 or the “Anti-Drunk Driving Act of 2013.”

HELD: (1) NO. The two key element of resistance and serious disobedience punished under Art. 151 of the RPC are: (1) that a person in authority or an agent is engaged in the performance of official duty or gives a lawful order and (2) that the offender resists or seriously disobeys such person or his agent.

There can be no quibble that P/Insp. Aguilar and his apprehending team as persons in authority manning a legal checkpoint. However, the officers involved appeared not to have performed their duties as required by law. They spotted Edmund’s purported swerving vehicle. Then they signaled him to stop, which he obeyed. But they did not demand the presentation of the driver’s license or issue any ticket or similar citation paper as required by Sec. 29 of RA 4136.

Moreover, Edmund’s act of exercising one’s right against unreasonable searches to be conducted in the middle of the night, in context, be equated to disobedience let alone resisting a lawful order in contemplation of Art. 151 of the RPC.

(2) NO. The legal situation has of course changed with the approval in May 2013 of the Anti-Drunk and Drugged Driving Act of 2013 (RA 10586) which also penalizes driving under the influence of alcohol (DUIA), a term defined under its Sec. 3 (e) as the act of operating a motor vehicle while the driver’s blood alcohol concentration level has, after being subjected to a breath analyzer test reached the level of intoxication as established jointly by the DOH, the Napolcom and the DOTC.

Viewed from the prism of RA 10586, Edmund cannot plausibly be convicted under the influence of alcohol for the obvious reason: he had not been tested beyond reasonable doubt, let alone conclusively, for reaching during the period material the threshold level of intoxication set under the law for DUIA, i.e., a BAC of 0.05% or over.

42      CRIMES AGAINST   THE    FUNDAMENTAL   LAW
                           OF    THE    STATE

VIOLATION     OF      DOMICILE

EDIGARDO    GEROCHE   et.   al.   vs.   PEOPLE   OF   THE   PHILIPPINES
G.R.   No.   179080,   November   26,   2014,   742   SCRA   514

FACTS: On May 14, 1989 at 10 o’clock in the evening, Limbag roused from sleep inside his house when Geroche, a Barangay captain, Garde and Marfil, members of CAFGU, who were not armed with search warrant, suddenly entered the house by destroying the main door.

The accused mauled Limbag, striking him with a garand rifle which caused his injuries. They looked for firearms but instead found and took away his airgun.

ISSUES

(1) What is the crime committed?

(2) Whether the accused are criminally liable.

HELD: (1) The crime committed is Violation of Domicile under Article 128 of the Revised Penal Code (RPC).

Violation of Domicile is committed by any public officer or employee, not being authorized by judicial order, shall enter any dwellings against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so.

(2) YES. vThey are guilty of violation of domicile considering their judicial admissions that they were Barangay captain (in case of Geroche) and part of CAFGU (in the case of Garde and Marfil).

By holding such positions, they are considered public officers/employees.

43 ACTS OF LASCIVIOUSNESS - INVITATION BY THE VICTIM NEGATES LEWD

AVELINO ANGELES vs. PEOPLE OF THE PHILIPPINES
G.R. No. 212562, October 12, 2016, 803 SCRA 162

FACTS: In the early evening of May 31, 2007, Jacqueline and her housemaid, Sheryl, went to the “kubo” managed by appellant Avelino to dance and sing.

During that evening, Jacqueline was drinking and flirting with Avelino. She was so drunk and started dancing and while dancing, she took off her bra and tossed it to Sheryl. As she kissed Avelino, she asked him if he could make her happy and he replied “try me.”

Jacqueline led him behind a mango tree. It was there when she pulled up her blouse and pulled Avelino’s head towards her breast and he sucked it.

Towards the end of the evening gathering, Jacqueline wanted him to accompany her home but Avelino opted to stay in the “kubo” to clean up, however, she just told him “pare, sumunod ka ha.”

Maintaining that an invitation was extended to him, Avelino proceeded to Jacqueline’s house after cleaning up. The gate was unlocked and the main door was left open.

He entered and found Jacqueline and Sheryl lying on the bed. When Sheryl left the room, Avelino laid down beside Jacqueline.

When Jacqueline was awakened, she pushed Avelino away demanding to know how he was able to enter the room.

ISSUE

Whether the invitation was sufficient to remove the lewd design made by Avelino from the ambit of criminal acts of lasciviousness.

RULING

YES. The invitation indicative of the purported victim’s consent must be interpreted vis-à-vis the incidents which occurred a few minutes and after they parted ways.

The invitation was made when Jacqueline left the gathering which before the said incident. From the time the invitation was extended and until the time Avelino entered the room, there was no significant occurrence which could have led Avelino to conclude Jacqueline changed her mind. Simply put, in the span of an hour, there was no reason for appellant Avelino to believe that the invitation was withdrawn.

In this case, the element that criminalizes lewdness or the criminal circumstances of its commission was not proved beyond reasonable doubt.

The facts indicate that the alleged acts of Avelino are in the nature of amorous advances made by ardent lover from the sexual partner, at the very least.

Such conclusion can be drawn from the invitation made by the purported victim an hour before the said incident. Plainly, Avelino went to Jacqueline’s bedroom with what he had reason to think was an invitation to a tryst. There was, however, either a change of mind or a completed teasing.

*** NOTHING IS IMPOSSIBLE WITH GOD ***

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