Supplemental Reviewer Criminal Law

7/31/2019 Supplemental Reviewer Criminal Law

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA

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1. CHARACTERISTIC OF CRIMINAL LAW - There are three characteristics of criminallaw, to wit: (1) generality (2) territoriality, and (3) prospectivity. The general, territorial andprospective characteristics of criminal law are principles that define and demarcate the scopeand limitation of the operation of criminal law. Under these three principles, the operation orenforceability of criminal law is limited to wrongful acts committed on or after its effectivity

(prospectivity) within the territory of the Philippines (territoriality) by person living andsojourning therein (generality).

2. GENERALITY - Generality principle is akin to territoriality principle in the sense thatthe demarcating factor of both principles is the territory of the Philippines. Under generalityprinciple, criminal law is enforceable to person living or sojourning in the territory of thePhilippines. Under the territoriality principle, criminal law is applicable only to criminal actcommitted within the territory of the Philippines. But the concept of generality is different fromterritoriality. The applicability of territoriality principle or generality principle will depend on theissue raised by the accused in questioning the jurisdiction of the court. If the accused attacksthe jurisdiction of the court because of the unique characteristic of his person (e.g. he is aforeigner, military, hermit, primitive, ambassador, legislator, President), the applicable principle

is generality. If the accused attacks the jurisdiction of the court due to the unique characteristicof the place where the crime was committed (e.g. the place of commission is foreign vessel,embassy or high sea) etc, the applicable principle is territoriality.

a. Military officers - The Revised Penal Code and special criminal laws areenforceable against military men living or sojourning in the Philippines. However, CA 408(Articles of War) which vests jurisdiction over members of the AFP to the courts-martial. RA7055 (AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY) did not divest the

military courts of jurisdiction to try cases involving "service-connected crimes or offenses"under CA 408 (Example: Mutiny or sedition, quarrels, frays; disorders, breaking an arrest orescaping from confinement, releasing prisoners without proper authority, wrongfulappropriation of captured property, corresponding with, or aiding the enemy, spies, dueling,

fraud against the government affecting matters and equipment). In fact, RA No. 7055 mandatesthat these service-connected crimes shall be tried by the court-martial (Navales v. Abaya, G.R.No. 162318, October 25, 2004, Callejo). CA 408 is a law of preferential application since itexcludes members of the AFP from the operation of the Revised Penal Code and specialcriminal laws if the crimes committed by them are service-connected as defined by RA 7055.

b. Consular officers - Despite the ruling in Schneckenburger vs. Moran, consularofficers and employees are now enjoying immunity from criminal prosecution of acts performedin the exercise of consular function under 1967, Convention on Consular Relation. Slander(Liang vs. People, GR NO 125865, January 28, 2000) or reckless imprudence resulting inhomicide is not function-related. Consul is liable for committing this crime.

3. TERRITORIALITY PRINCIPLE: Under the principle of territoriality, the Philippines has

jurisdiction over crimes committed inside its territory except as provided in the treaties and laws

of preferential application.

a. Embassy - The ground occupied by US embassy is in fact the territory of the USA towhich the premises belong through possession or ownership. A person who committed a crimewithin the premises of an embassy will be prosecuted under the law of Philippines because ofthe principle of territoriality (See: Reagan vs. Commission on Internal Revenue, 30 SCRA 968,
http://www.supremecourt.gov.ph/jurisprudence/2004/oct2004/162318.htmhttp://www.supremecourt.gov.ph/jurisprudence/2004/oct2004/162318.htmhttp://www.supremecourt.gov.ph/jurisprudence/2004/oct2004/162318.htm


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En Banc; Answers to 2009 Bar Examination Questions by UP Law Complex). However,jurisdiction of the Philippines over the embassy is limited or restricted by the principles ofinviolability of diplomatic premises, which is a generally accepted principle of international law.Warrant of arrest cannot be served inside US embassy without waiver of American governmentof its right under the principle of inviolability.

a. English rule - There are two fundamental rules in International Law regarding crimescommitted aboard a foreign merchant vessel (not military vessel), if the same is within the 12-mile territorial water (not internal or archipelagic water or high seas) of the Philippines to wit: (1)French rule- Crimes committed aboard a foreign merchant vessel within the territorial water ofthe Philippines are subject to the jurisdiction of the flag state (extra-territoriality principle) unlesstheir commission affects the peace and security of our country. (2) English rule Crimescommitted aboard a foreign merchant vessel within the territorial water of the Philippines aresubject to jurisdiction of the Philippines (territoriality principle) unless their commission does notaffect its peace and security, or has no pernicious effect therein. It is the English rule thatobtains in this jurisdiction.

b. Convention of the law of the Sea - Under the Convention on the Law of the Sea,

the flag state of foreign merchant vessel passing through the territorial sea has jurisdiction overcrimes committed therein. However, the Philippines can exercise jurisdiction to arrest anyperson or to conduct any investigation in connection with any crime committed on board theship during its passage in the following cases: (1) if the consequences of the crime extend tothe coastal State; (2) if the crime is of a kind to disturb the peace of the country or the goodorder of the territorial sea; (3) if the assistance of the local authorities has been requested bythe master of the ship or by a diplomatic agent or consular officer of the flag State; or (4) if suchmeasures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropicsubstances.

c. Drug trafficking - Following the English rule, the Philippines has no jurisdiction overtransportation of opium in a foreign vessel in transit in territorial water of our country because

possession of opium does not have a pernicious effect on our country (U.S. vs. Look Chaw).But under the Convention of the law of the Sea, the Philippines can exercise jurisdiction toarrest any person or to conduct any investigation involving transportation of dangerous drugssince this is a measure necessary for the suppression of illicit traffic in narcotic drugs orpsychotropic substances.

4. EXTRA-TERRITORIALITY - Under the principle of extra-territoriality, the Philippines

has jurisdiction over crimes committed outside its territory for those five instances mention in

Article 2 such as crime committed in vessel of Philippines registry (ownership is not material),

function-related crime committed by public officer (such as corruption or direct bribery), crimes

against national security (such as treason, espionage; rebellion is not a crime against national

security), and crime against law of nation such as piracy and mutiny). In People vs. Tulin, G.R.No. 111709, August 30, 2001- Piracy is an exception to the rule on territoriality in criminal law

(Article 2). The same principle applies even if accused were charged, not with a violation of

qualified piracy under the penal code but under a special law, PD No. 532 which penalizes

piracy in Philippine waters. It is likewise, well-settled that regardless of the law penalizing the

same, piracy is a reprehensible crime against the whole world.


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4. PROSPECTIVITY: Article 22 of RPC - If the court in trying an accused, whocommitted a crime prior to the passage of the law, should give retroactive effect to the lawprovided that: (1) it is favorable to the accused and (2) the accused is not a habitual delinquent(Article 22). Ex post facto law - Congress in passing a law can insert retroactive effect provisiontherein subject to the Constitution of ex post facto law. If the retroactive provision of the law haspassed the constitutional test on prohibition against ex post facto law, the court must give

retroactive effect to this law even if the accused is a habitual delinquent. Nullum crimen poenasine lege If the law repeals a previous law or provision defining a crime, the applicableprinciple is not Article 22 of RPC but nullum crimen poena sine lege(There is no crime whenthere is no law punishing it). Since the intention of the new law is to decriminalize an actpunishable by the repealed law, the accused should be acquitted or released if the alreadyconvicted, even though he is a habitual delinquent.

5. REPEAL: Decriminalization- Repeal of a penal law deprives the courts of jurisdictionto punish persons charged with a violation of the old penal law prior to its repeal (Sindiong andPastor, 77 Phil. 1000; Binuya, 61 Phil. 208; U.S. vs. Reyes, 10 Phil. 423; U.S. vs. Academia,10 Phil. 431; Arizala vs. Court of Appeals, G.R. No. 43633, September 14, 1990; Almuete, etal., G.R. No. L-265, February 27,19 76). The intention of the new law is to decriminalize an act

punishable of old law. Thus, person cannot be punished for subversion under RA 1700, whichwas repealed by RA 7637, even though he is a habitual delinquent. New regulation - Repealwith re-enactment of a penal law does not deprive the courts of jurisdiction to punish personscharged with a violation of the old penal law prior to its repeal. Such repeal even without asaving clause would not destroy criminal liability of the accused (U.S. vs. Cana, 12 Phil. 241).The intention of the new law is not to decriminalize an act punishable of old law but merely toprovide new regulation. If the new law is favorable to the accused, who is not a habitualdelinquent, it shall be given retroactive effect. Example: A was charged for the crime of rapeunder Article 336 of RPC for raping his minor daughter. However, RA 8353 expressly repealed

Article 336 but re-enacted the provision on rape by reclassifying it as a crime against person,redefining it and prescribing a graver penalty for the commission thereof. The repeal of Article336 does not deprive the courts of jurisdiction to try and punish A for rape under Article 336.

RA No. 8353 shall not be given retroactive effect since it is not favorable to the accused.

6. MISTAKE OF FACT PRINCIPLE: Requisites: (1) That the acts done would havebeen lawful had the facts been as the accused believed them to be (2) that the mistake of factis not due to negligence or unlawful intent of the offender. The Supreme Court in several caseshad applied the mistake of fact doctrine, which allowed the accused, who committed a crimeon a mistaken belief, to enjoy the benefit of the justifying circumstance of self-defense (UnitedStates vs. Ah Chong, 15 Phil., 488), defense of person and right (US vs. Bautista, G.R. No.10678 August 17, 1915), defense of honor (United States vs. Apego, 23 Phil. 391),performance of duty, (People vs. Mamasalaya, G.R. No.L-4911, February 10, 1953), and theexempting circumstance of obedience of an order of superior officer (People vs. Beronilla, G.R.No. L-4445, February 28, 1955). In Ah Chong, the accused, who believed that the victim was a

robber and that his life was in danger because of the commencement of unlawful aggression,was acquitted due to mistake of fact doctrine in relation to the rule on self-defense. In Oanis vs.Galanta, the accused, who believed that the sleeping victim is a notorious criminal to bearrested by them, was held guilty of murder for shooting him since the mistake of fact principlein relation to performance of duty is not applicable. Second element is not present since theydid not ascertain first his identify despite opportunity. The first element is not likewise presentsince the killing of victim believed to be a criminal was not necessary consequence of the dueperformance of duty of the accused as police officers.


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The gist of the theft is the intent to deprive another of his property in a chattel, either forgain or out of wantonness or malice to deprive another of his right in the thing taken. Thiscannot be where the taker honestly believes the property is his own or that of another, and thathe has a right to take possession of it for himself or for another, for the protection of the latter.However, the belief of the accused of his ownership over the property must be honest and ingood faith and not a mere sham or pretense. If the claim is dishonest, a mere pretense, taking

the property of another will not protect the taker (Gaviola vs. People, G.R. No. 163927, January27, 2006, Callejo). This belief of ownership as a defense in theft is in accordance with themistake of fact doctrine.

7. VOLUNTARINESS Concurrence of freedom, intelligence and intent makes up thecriminal mind behind the criminal act. Thus, to constitute a crime, the act must, generallyand in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sitrea. No crime is committed if the mind of the person performing the act complained of isinnocent (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004). Voluntariness is an elementof crime, whether committed by dolo or culpa or punishable under special law. The act to beconsidered a crime must be committed with freedom and intelligence. In addition tovoluntariness, intentional felony must be committed with dolo (malice), culpable felony with

culpa, and mala prohibita under special law with intent to perpetrate the act or with specificintent (such as animus possidendi in illegal possession of firearm). Presumption ofvoluntariness: In the determination of the culpability of every criminal actor, voluntariness is anessential element. Without it, the imputation of criminal responsibility and the imposition of thecorresponding penalty cannot be legally sanctioned. The human mind is an entity, andunderstanding it is not purely an intellectual process but is dependent to a large degree uponemotional and psychological appreciation. A mans act is presumed voluntary. It is improper toassume the contrary, i.e. that acts were done unconsciously, for the moral and legalpresumption is that every person is presumed to be of sound mind, or that freedom andintelligence constitute the normal condition of a person (People vs. Opuran, G.R. Nos. 147674-75, March 17, 2004).

8. CRIMINAL INTENT To be held liable for intentional felony, the offender mustcommit the act prohibited by RPC with specific criminal intent and general criminal intent.General criminal intent (dolo in Article 3 of RPC) is an element of all crimes but malice isproperly applied only to deliberate acts done on purpose and with design. Evil intent must unitewith an unlawful act for there to be a felony. A deliberate and unlawful act gives rise to apresumption of malice by intent. On the other hand, specific intent is a definite and actualpurpose to accomplish some particular thing. In estafa, the specific intent is to defraud, inhomicide intent to kill, in theft intent to gain (Recuerdo vs. People, G.R. No. 168217, June 27,2006, Callejo). In the US vs. Ah Chong, the accused was acquitted because of mistake of factprinciple even though the evidence showed that he attacked the deceased with intent to kill(United States vs. Apego, G.R. No. 7929, November 8, 1912; Dissenting opinion of J. Trent),which was established by the statement of the accused "If you enter the room I will kill you."

Article 249 (homicide) should be read in relation to Article 3. The accused was acquitted notbecause of the absence of intent to kill (specific intent) but by reason of lack of general intent(dolo or malice).

9. PRESUMED MALICE - The general criminal intent (malice) is presumed from thecriminal act and in the absence of any general intent is relied upon as a defense, such absencemust be proved by the accused (Ah Chong case, the accused was able to rebut thepresumption of general criminal intent or malice). Generally, a specific intent is not presumed.Its existence, as a matter of fact, must be proved by the State just as any other essential


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element. This may be shown, however, by the nature of the act, the circumstances under whichit was committed, the means employed and the motive of the accused (Recuerdo vs. People,G.R. No. 168217, June 27, 2006, Callejo). There are other specific intents that are presumed. Ifa person died due to violence, intent to kill is conclusively presumed. Intent to gain is presumedfrom taking property without consent of owner.

10. MOTIVE Motive to prove identity - In a criminal case, the prosecution must provethe elements of crime and the identity of the person who committed it. Proof of motive will notestablish the presence of the elements of the crime but it will help the prosecution in showingthat the accused committed the crime. The identity of the culprit, which is an essential requisiteto cause the conviction of the accused, is usually established through positive identification ofthe witness. However if there is doubt as to the identity of the culprit, showing motive of theaccused for committing the crime will help establish his direct link to the commission of thecrime. In People Ferrera, GR NO L-66965, June 18, 1987, En Banc, it was held that motive isessential to conviction in murder cases only when there is doubt as to the identity of the culprit,not when the accused has been positively identified as the assailant. Motive as an element -

Although motive is not an essential element of a crime, and proving it is just a matter ofprocedure pertaining to the identification of the accused, there are some cases where it is

absolutely necessary to establish a particular motive as a matter of substance because it formsan essential element of the offense. In cases of libel or slander or malicious mischief,prosecution must prove malice on the part of the accused as the true motive of the conduct(People vs. Diva and Diva, GR NO L-22946, April 29, 1968, En Banc).

11. ERROR IN PERSONAE - In case of error in personae, person is criminallyresponsible for committing an intentional felony although the consequent victim is different fromthat intended due to mistake of identity. Requisites: In order to make a person criminally liablein case of error in personae, the following requisites must be present: (1) Offender committedan intentional felony; (2) The consequent victim against whom the felony was directed isdifferent from that intended due to mistake of identity. If the penalty for the intended crime isdifferent from that of the committed crime, the court shall impose the penalty for the intended

crime or committed crime, whichever is lesser.

ABERRATIO ICTUS - In case of aberratio ictus, person is criminally responsible forcommitting an intentional felony although the consequent victim is different from that intendeddue to mistake of blow. Requisites: In order to make a person criminally liable in case ofaberratio ictus, the following requisites must be present: (1) Offender committed an intentionalfelony; (2) The consequent victim against whom the felony was directed is different from thatintended due to mistake of blow. The crime committed against the intended victim and victiminjured due to aberratio ictus shall be made a complex crime (compound crime). The court shallimpose the penalty for the most serious crime in its maximum period.

PRAETER INTENTIONEM: In case of praeter intentionem, person is criminally

responsible for committing an intentional felony although its wrongful consequence is graverthan that intended. Requisites: In order to make a person criminally liable under Article 4 (1) incase of praeter intentionem, the following requisites must be present: (1) Offender committedan intentional felony; (2) The wrongful act done, which is graver than that intended, is thedirect, natural and logical consequence of the felony committed by the offender. Praeterintentionem may be appreciated as mitigating circumstance of lack of intent to commit so gravea wrong than that committed.


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a. Evident premeditation- In case of aberatiu ictus and error in personae, the SC did

not appreciate evident premeditation since the victim, who was actually killed, is not

contemplated in the premeditation of the accused (People vs. Trinidad, G.R. NO. L-38930,

June 28, 1988; People vs. Mabug-at, 51 Phil., 967; People vs. Trinidad, G.R. No. L-38930,

June 28, 1988). However, praeter intentionem and evident premeditation can be independently

appreciated. there is no incompatibility between evident premeditation and no intention tocommit so grave a wrong since the latter is based on the state of mind of the offender while the

former manner of committing the crime (Reyes; People vs. Enriquez, 58 Phil. 536).

b. Treachery - If accused employed means to render the victim defenseless, treachery

shall be appreciated even if the killing is due to error in personae (People vs. Del Castillo, Sr.,

G.R. No. L-32995, April 30, 1984) or aberratio ictus (People vs. Mabug-at, G.R. No. 25459,

August 10, 1926, En Banc) or with the circumstance of praeter intentionem (People vs.

Cagoco, G.R. No. 38511, October 6, 1933)

c. Conspiracy - Conspirators, who conspired to kill a particular parson, are liable for

the killing of another person due to error in personae (People vs. Pinto, Jr. and Buenaflor, G.R.No. No. 39519, November 21, 1991). However, conspirator, who never even fired a single shotand whose only participation was to drive their getaway vehicle and to lend his firearm to hisback rider so that the latter could finish off the target victim was not found accountable for theinjury sustained by the unintended victim was just a star-crossed bystander who wasaccidentally hit in the process (aberratio ictus) (People vs. Herbias, G.R. No. 112716-17,December 16, 1996; People vs. Flora and Flora, G.R. No. 125909, June 23, 2000).

12. INTENT TO KILL: Intent to kill is an element of homicide and murder. But even ifoffender had no intent to kill, he would be held just the same liable for homicide or murder if hisfelonious act is the proximate cause of the death of the latter. Even if there is no intent to kill,offender is liable for homicide or murder if the victim died as a result of the felonious act of the

former. The offenders act is considered felonious if it is accompanied with criminal or evil intentsuch as intent to inflict injury, intent to hide the body of the crime, intent to threaten victim,intent to silence the hold-up victim, or intent to rape. Offender is liable for homicide because itis the natural, direct and logical consequence of an act committed with criminal intent.

a. With intent to hide the body of the crime In People vs. Ortega, Jr., G.R. No.116736, July 24, 1997 - Ortega stabbed the victim. Garcia assisted Ortega in concealing thebody of the victim by throwing the body into the well. Victim died due to drowning. Issue: IsGarcia liable for the death of the victim as principal in homicide even if his intention was not tokill the victim but merely to assist Ortega in concealing his dead body not knowing that thevictim was still alive at that time? In assisting Ortega carry the body of victim to the well, Garciawas committing an intentional felony; concealing the body of the crime to prevent its discovery

makes him liable as an accessory in homicide. Hence, Garcia should be held liable for thedirect, natural and logical consequence of his felonious act of assisting Ortega in hiding thebody of the victim. Since proximate cause of death of the victim is the felonious and accessoryact of throwing the victim into the well, Garcia should be held liable for the death as principal inhomicide.

b. With intent to threaten In US vs. Valdez, G.R. No. 16486, March 22, 1921, EnBanc - The accused in rage he moved towards victim with a big knife in hand, threatening tostab him. Victim believing himself in great and immediate peril jumped into the water where he


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was drowned. The accused was found guilty of homicide. The act of threatening to stab victimconstitutes a felony of threat. Hence, accused is liable for the direct, natural and logicalconsequence of his intentional and felonious act. It was held that: "If a man creates in anotherman's mind an immediate sense of danger which causes such person to try to escape, and inso doing he injures himself, the person who creates such a state of mind is responsible for theinjuries which result."

d. Intent to inflict injury - Intentional infliction of injury resulting in death of the victimconstitutes homicide or murder. In People vs. Pugay, et al., No 74324, November 17, 1988, thedeceased, a retardate, and the accused Pugay were friends. Deceased used to run errands forPugay and at times they slept together. During a town fiesta fair was held in the public plaza.

Accused, Pugay and Samson with several companions, who appeared to be drunk, made thedeceased dance by tickling him with a piece of wood. Not content with what they were doingwith the deceased, the accused Pugay suddenly took a can of gasoline from under the engineof the Ferris wheel and poured its contents on the body of the former. Then, the accusedSamson set victim on fire making a human torch out of him. Pugay and Samson were stunnedwhen they noticed the deceased burning. Crime committed by Samson: There is no intent tokill. The act of the Accused was merely a part of their fun-making that evening. Accused merely

intended to set the deceased's clothes on fire. His act, however, does not relieve him ofcriminal responsibility. Burning the clothes of the victim would cause at the very least somekind of physical injuries on his person, a felony. Since such felony of physical injuries resultedinto a graver offense, he must be held responsible therefor. (Note: The crime is not murderqualified by means of fire because the fire was not use to kill but merely to inflict injury).

e. Recklessness Even if there is no intent to kill and evil intent, offender is liable forculpable felony if the victim died as a result of the recklessness of the former. Crime committedby Pugay: Having taken the can from under the engine of the Ferris wheel and holding it beforepouring its contents on the body of the deceased, this accused knew that the can containedgasoline. The stinging smell of this flammable liquid could not have escaped his notice evenbefore pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid

every undesirable consequence arising from any act that may be committed by his companionswho at the time were making fun of the deceased. The accused is only guilty of homicidethrough reckless imprudence.

f. Accident - If there is no intent to kill, evil intent and recklessness on the part of theaccused, he is not liable for his intentional act, which caused the death of the victim. In UnitedStates vs. Tanedo (15 Phil. Rep., 196), deceased went with the accused to hunt wild chickensat the forest. While hunting, the accused came upon a wild chicken, and, not seeing deceasedabout and not knowing or having any reason to believe that he was in that vicinity shot thechicken. The bullet that hit the chicken recoiled and hit the deceased. It was held that accusedis not criminally liable. Life was taken by misfortune or accident while in the performance of alawful act executed with due care and without intention of doing harm. Note: The accused

could not have foreseen that the slug after hitting the chicken would recoil and hit deceased.The principle enunciated in Tanedo case will not apply if the place where the accused lawfullydischarged his firearm is populated. In People vs. Nocum, G.R. No. L-482, 25 February 1947,En Banc - There was a fistic fight between two persons. Desiring to stop the encounter,accused shouted at the combatants. As these paid him no attention, he drew a .45 caliberpistol and shot twice in the air. The bout continued, however; so he fired another shot at theground, but unfortunately the bullet ricocheted, and hit an innocent by-stander, resident of theplace. Victim died. It was held that: The mishap should be classed as homicide throughreckless imprudence, the slaying having been unintentional. It is apparent that defendant


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willfully discharged his gun-for without taking the precautions demanded by the circumstancethat the district was populated, and the likelihood that his bullet would glance over the hardpavement of the Manila thoroughfare. Note: The accused should have foreseen that the slugafter hitting the pavement would recoil and might hit somebody.

13. PROXIMATE CAUSE: Proximate cause is the primary or moving cause of the

death of the victim; it is the cause, which in the natural and continuous sequence unbrokenwith any efficient intervening causeproduces death and without which the fatal result couldnot have happened. It is the cause, which is the nearest in the order of responsible causation(Blacks Law Dictionary). Intervening cause- The direct relation between the intentional felonyand death may be broken by efficient intervening cause or an active force which is either adistinct act or fact absolutely foreign from the felonious act of the offender. Lightning that killsthe injured victim or tetanus infecting the victim several days after the infliction of injuries, orvoluntary immersing the wounds to aggravate the crime committed by accused is anintervening cause. Thus, the accused is liable for physical injuries because of the interveningcause rule. On the other hand, carelessness of the victim, or involuntary removal of thedrainage, lack of proper treatment is not an intervening cause. Hence, the accused is liable forthe death because of the proximate cause rule.

14. IMPOSSIBLE CRIME: Offender shall be held liable for impossible crime if thefollowing requisites are present: (1) offender performing an act which would have been anoffense against person or property; (2) offender performed an act with evil intent; (3) offenderdid not commit the offense because of the impossibility of its accomplishment or employment ofinadequate or ineffectual means; and (4) offender in performing an act is not violating anotherprovision of the law (Luis B. Reyes).

a. Intod principle - In Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992Outside the house of the victim, accused with intent to kill fired at the bedroom, where thevictim is supposed to be sleeping. No one was in the room when the accused fired the shots.No one was hit by the gun fire. The accused were convicted of impossible crime. Accused

shoot the place where he thought his victim would be, although in reality, the victim was notpresent in said place and thus, the accused failed to accomplish their end due to its factualimpossibility. In the United States, criminal laws are silent regarding impossible crimes; hencewhere the offense sought to be committed is factually impossible of accomplishment, theoffender shall be liable for attempted crime. On the other hand, where the offense is legallyimpossible of accomplishment, the actor cannot be held liable for any crime. In the Philippines,the crime committed is impossible crime if the offense sought to be committed is factually orlegally impossible. Killing a dead person is impossible crime because of legal impossibility.Putting the hand inside an empty pocket with intention to steal a wallet is impossible crimebecause of factual impossibility.

b. Raping a dead person- Prior to RA 8353, rape is a crime against chastity. Thus, if a

person raped a dead person believing that she was just sleeping, offender could not be heldliable for impossible crime (J. Ramon Aquino). In impossible crime the act could haveconstituted the crime against person or property if its accomplishment was not impossible.Rape is neither a crime against person nor against property. However, RA 8353 reclassifiesrape from crime against chastity to crime against person. Hence, an offender for raping a deadperson without knowing that she was already dead may now be held liable for impossiblecrime.


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c. Committing another crime - A discharged shotgun at B from a distance of300yards; but because of the limited range of the firepower of the shotgun, it would be impossiblefor A to harm B. A is liable of discharged of firearm and not impossible crime. Where theoffender unlawful entered the house and took a watch that turned out to be his own, he is liablefor trespass to dwelling and not impossible crime (Criminal Law Conspectus by Justice FlorenzRegalado). If the accused administered abortive drugs upon his girlfriend whom he believed to

be pregnant, which turned out not to be true, but the woman became ill for more than 30 days,the accused will be liable for serious physical injuries and not impossible crime of abortion(Criminal Law Reviewer by Gregorio).

15. ATTEMPTED AND FRUSTRATED STAGES: In attempted felony, the offenderperforms directly an overt act, which consists of one or more acts of execution, but not enoughto consequently produce the felony. In frustrated felony, the offenders perform all the acts ofexecution that would produce the felony as a matter of consequence. To determine whetherthe felony is at the attempted or frustrated stage, acts of execution of execution of a felonymust be identified. Example: The acts of execution that would produce homicide or murder areinfliction of mortal wounds upon the victim. If the wounds inflicted upon the victim with intent tokill are non-mortal, the crime committed is attempted homicide; if wounds are mortal, the crime

committed is frustrated homicide.

In attempted felony and frustrated felony, the external acts performed by the offenderand the intended felony must have a direct connection; but in an attempted felony, the offenderfailed to perform all the acts of execution; thus his external acts would not producethe felonyas a consequence; on the other hand in a frustrated felony, the offender performed all the actsof execution; thus, his external acts would producethe felony as a consequence.

16.FRUSTRATED AND CONSUMMATED- In frustrated and consummated felony, theaccused performed all acts of execution that would produce the felony as a consequence. Ifthe felony is not produced due to external cause, the crime committed is frustrated felony; if thefelony is produced the crime committed is consummated.

In frustrated felony, the offender performed all the acts of execution but the felony wasnot produced as a consequence due to extraneous cause. However, there are felonies, thecommission of which has no frustrated stage since the performance of all the acts of executionimmediately consummates the felony. In homicide or murder case, once the offender inflictedmortal wound on the victim, all the acts of execution are considered performed. However, whatconsummates homicide or murder is not the infliction of mortal wounds but the death of thevictim as a consequence of the mortal wound inflicted. Thus, if the mortally wounded victim didnot die due to medical intervention, homicide or murder is only at the frustrated stage. On theother hand, in rape once the offender sexually penetrate the labia of the vagina of the victim, allthe acts of execution are considered performed. But since sexual penetration consummatesrape, there are no occasions where the offender performed all the acts of execution and yet the

felony was not produced as a consequence. In sum, there is no such thing as frustrated rapesince the performance of all the acts of execution immediately consummates rape.

17. ABSOLUTORY CAUSE In attempted felony and frustrated felony, the offenderfailed to accomplish his criminal objective by reason of extraneous causes; if the causes arenot extraneous, the accused will be absolved from criminal liability.


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a. Negative Act - In the attempted stage of the execution of a felony, the offender mustdo a negative actto be exempt from criminal liability for attempted felony; since the offenderhas not yet performed all the acts of execution that would produce the felony as aconsequence, he must spontaneously desist from further doing criminal acts that will completeall the acts of execution. Example: A with intent to kill shot B; B sustained non-mortalwound. To be exempt from criminal liability for attempted homicide or murder, A must

spontaneously desist from further shooting B in order not to inflict mortal injury upon him.

b. Positive Act If the offender performs all the acts of execution, which wouldproduce the felony as a consequence, offender is not exempted from liability for frustratedfelony even if he voluntary desisted from further doing criminal act. Spontaneous desistance isa defense in attempted felony but not in frustrated felony. In the frustrated stage of theexecution of a felony, the offender must do a positive actto be exempt from criminal liability;since the offender has performed all the acts of execution that would produce the felony as aconsequence, he must do something to prevent, or thwart the production of the felony.Example: A with intent to kill shot B; B sustained mortal wound. To be exempt fromcriminal liability for frustrated felony, it is not enough that A would desist from further shootingB. The spontaneous desistance is not a valid defense since A had already inflicted mortal

wound on B that would cause his death as a consequence. Thus, A must save the life of Bby treating his wound. If B did not die because As medical treatment, the latter will not beheld liable for frustrated felony because the homicide was not produced due to the will of A.

c. Not absolutory cause If the felony is consummated, offender cannot undo whatwas done. Offender would not be absolved from criminal liability even if he had donesomething that will mitigate the effects of the felonious act. Example: (1) Restitution of fundsmalversed immediately and voluntarily made before the case was instituted is not anabsolutory cause (Navarro vs. Meneses III, CBD Adm. Case No. 313, January 30, 1998, EnBanc). (2) A stole chicken under the house of B one evening. Realizing that what he did waswrong, A returned thechicken to the place under the house of B. Since the crime of theftwas already consummated, the return of the stolen property does not relieve A of criminal

responsibility. A had already performed all the acts of execution, which produced the crim e oftheft before he returned the chicken (Reyes). (3) The fact that the accused abandoned victimafter six days of captivity does not lessen his criminal culpability much less exempt him fromcriminal liability for the kidnapping and detention of victim (Baldogo, G.R. No. 128106-07,January 24, 2003, En Banc).

18. BATTERED WOMAN SYNDROME: "Battered Woman Syndrome" refers to ascientifically defined pattern of psychological and behavioral symptoms found in women livingin battering relationships as a result of cumulative abuse (Section 3 of RA No. 9262). Each ofthe phases of the cycle of violence must be proven to have characterized at least two batteringepisodes between the accused and her intimate partner and such final episode produced inthe battered persons mind an actual fear of an imminent harm from her batterer and an honest

belief that she needed to use force in order to save her life. (People vs. Genosa, G.R. No.135981, January 15, 2004). The three phases of the Battered Woman Syndrome are: (1) thetension-building phase; (2) the acute battering incident; and (3) the tranquil, loving or non-violent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004; Answer to the 2010Bar Examination Questions by UP Law Complex). The essence of this defense of BatteredWoman Syndrome as a defense is that battered woman, who suffers from physical andpsychological or emotional distress, is acting under an irresistible impulse to defend herselfalthough at the time of commission of the crime the batterer-victim had not yet committedunlawful aggression. In Genosa supra, it was held that it is crucial to the BWS defense is the


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state of mind of the battered woman at the time of the offense. She must have actually fearedimminent harm from her batterer and honestly believed in the need to kill him in order to saveher life.That is why even in the absence of actual aggression or any other element of self-defense, a woman, who is found to be suffering from battered woman syndrome is notcriminally liable for killing her husband.

19. STATE OF NECESSITY - The justifying circumstance of avoidance of greater evil isalso called state of necessity. The defense of a state of necessity is a justifying circumstanceunder Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that mustbe proved by the accused with clear and convincing evidence. According to Groizard, rightsunder the state of necessity rule may be prejudiced by three general classes of acts, namely,(a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neithermalicious, imprudent nor negligent but nevertheless cause damages (People vs. Retubado,G.R. No. 124058, December 10, 2003, Callejo). Intentional act - Ty vs. People, G.R. No.149275, September 27, 2004, Tinga Accused was charged for violation of BP Blg. 22 forissuance of bounced checks. According to her, she was compelled to issue the checks - acondition the hospital allegedly demanded of her before her mother could be discharged - forfear that her mothers health might deteriorate further due to the inhumane treatment of the

hospital or worse, her mother might commit suicide. It was held: For the defense of state ofnecessity to be availing, the greater injury feared should not have been brought about by thenegligence or imprudence, more so, the willful inaction of the actor. In this case, the issuanceof the bounced checks was brought about by accused own failure to pay her mothers hospitalbills. Negligent or reckless act If the recklessness brought about the state of necessity, thereckless person who performed an act to avoid a greater evil shall be held liable for the crimeof imprudence or negligence under Article 365. Act causing damage- The accused does notcommit a crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability isborne by the person/persons benefited by the act of the accused. Thus, if the accused reapbenefits from his act, he would be held civilly liable on the basis of the principle of unjustenrichment (People vs. Retubado, G.R. No. 124058, December 10, 2003, Callejo).

20. PARTICIPATION - Chief actor - Criminal or chief actor is the person who actuallycommitted the crime. He is the one who committed or omitted the act, which causes thecriminal result. He directly perpetrated the acts, which constitute the crime. With or withoutconspiracy, the chief actor is a principal by direct participation.

Criminal participator - Criminal participator is the offender who participated incommitting a crime by indispensable or dispensable act. He performed an act, which is notconstitutive of felony but intended to give moral or material aid to the chief actor.

(1) With conspiracy - If there is conspiracy, the criminal participator or cooperator is aprincipal by direct participation. The act of the chief actor is considered the act of thecriminal participator.

(2) Without conspiracy- If there is no conspiracy, criminal participator may be held liableas principal by indispensable cooperation, accomplice or accessory depending upon thenature and time of participation. A criminal participator may participate in the commission ofthe crime by previous, simultaneous and/or subsequent acts.

(a) Previous or simultaneous acts The criminal participator by previous orsimultaneous acts is liable either as principal by indispensable cooperation or


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accomplice. If the cooperation is indispensable, the participator is a principal byindispensable cooperation; if dispensable an accomplice.

(b) Subsequent acts The criminal participator by subsequent acts is liable as anaccessory. An accessory does not participate in the criminal design, nor cooperate in thecommission of the felony, but, with knowledge of the commission of the crime, he

subsequently takes part by any of the three modes under Article 19.

The liability of accessory and principal should also be considered as quasi-collective. Itis quasi-collective in the sense that the principal and the accessory are liable for the felonycommitted but the penalty for the latter is two degrees lower than that for the former.

21. FENCING - The essential elements of the crime of fencing under PD No. 1612 areas follows: (1) A crime of robbery or theft has been committed; (2) The accused, who is not aprincipal or accomplice in the commission of the crime of robbery or theft (or carnapping butnot malversation or estafa), buys, receives, possesses, keeps, acquires, conceals, sells ordisposes, or buys and sells, or in any manner deals in any article, item, object or anything ofvalue, which has been derived from the proceeds of the said crime; (3) The accused knows or

should have known that the said article, item, object or anything of value has been derived fromthe proceeds of the crime of robbery or theft; and (4) There is on the part of the accused, intentto gain for himself or for another (Francisco vs. People, G.R. No. 146584, July 12, 2004,Callejo).

a. Proving robbery or theft Commission of robbery or theft by the principal as anelement of fencing should be proven beyond reasonable doubt to convict the fencer. One maynot be convicted of the crime of fencing if the complainant did not lodge a criminal complaintagainst the principal in the crime of theft. This will create doubt if theft was really committed(Tan vs. People, G.R. No. 134298, August 26, 1999) Failure to show finality of conviction oftheft against the principal is fatal to prosecution for fencing. In Francisco vs. People, G.R. No.146584, July 12, 2004, Callejo - The decision of the trial court convicting the principal of theft

does not constitute proof against the accused for the crime of fencing, that the principal had,indeed, stolen the jewelry. There is no showing that the said decision was already final andexecutory when the trial court rendered its decision in the fencing case. Accused wasacquitted.

a. Presumption: Section 6 of PD No. 1612 provides: Mere possession of any good,article, item, object, or anything of value which has been the subject of robbery or thievery shallbe prima facie evidence of fencing.Possession is not limited to actual manual control of theoffender over the stolen property but extends to power and dominion over it.

The accessory in theft should materially benefit from it. Riding in a stolen vehicle is notprofiting within the contemplation of Article 17 of the Revised Penal Code since it does not

improve his economic position. Profiting is not synonymous to intent to gain as an element oftheft (Gregorio). However, in violation of PD No. 1612, use of stolen property gives rise to thepresumption of fencing. Hence, the user may be held liable for fencing even though he did notmaterially benefit from crime of theft.

The presumption of theft is disputable. The presumption of fencing may be overcome byshowing proof that accused bought the item from a licensed dealer of second-hand items(Hizon-Pamintuan vs. People, G.R. No. 11414, July 11, 1994) or by showing official receipts


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covering the purchases of property, which is the subject of fencing (D. M Consunji, Inc. vs.Esguerra, G.R. No. 118590, July 30, 1996).

b. Recently stolen property If suspect is found in possession of recently stolenproperty, he should be charged as principal in the crime of theft or robbery. Under Section 3 (j),Rule 131, a person found in possession of a thing taken in the doing of recently wrongful act is

the taker and the doer of the whole act. Settled is the rule that unexplained possession ofrecently stolen property is prima facie evidence of guilt of the crime of theft ( US vs. Ungal, 37Phil., 835). If the subject property is not recently stolen, the presumption under Section 3 (j),Rule 131 will not arise. However, the possessor is still presumed to have violated PD No. 1612even if the property being possessed was not recently stolen. Under the law, mere possessionof stolen property gives rise to the presumption of fencing.

22. OBSTRUCTION OF JUSTICE Obstruction of justice under PD No. 1829 iscommitted by any person who knowingly or willfully obstructs, impedes, frustrates or delays theapprehension of suspects and the investigation and prosecution of criminal cases by (1)altering, destroying, suppressing or concealing any paper, record, document, or object, withintent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any

investigation of or official proceedings in, criminal cases, or to be used in the investigation of, orofficial proceedings in, criminal cases; (2) harboring or concealing, or facilitating the escape of,any person he knows, or has reasonable ground to believe or suspect, has committed anyoffense under existing penal laws in order to prevent his arrest prosecution and conviction;

a. Commission of crime, not an element - To be held liable as accessory under theRevised Penal Code, it is required that the crime was committed by the principal. To be heldliable for obstruction of justice, it is not necessary that the crime was committed by a criminalsuspect. Example: A committed suicide. To make it appear that B murdered A, C placedthe gun used in perpetrating suicide inside the bag of B. C committed the crime ofobstruction of justice for having obstructed the investigation of a criminal case involving thedeath of A. C cannot be held liable as accessory because murder was not really committed.

b. Knowledge -An accessory under Revised Penal Code must have knowledge of thecommission of the crime by the principal. To commit obstruction of justice, what is important isnot knowledge of the commission of a crime but awareness of an ongoing or impendinginvestigation and prosecution of a criminal case. In fact, even though the suspect did notcommit a crime, obstruction of justice is committed if he knowingly obstructs, impedes, orfrustrates the said investigation and prosecution.

c. Obstructing criminal investigation or prosecution - Public officer, who destroyeddangerous drugs as evidence for monetary consideration, is liable for obstruction of justice inaddition to graft and corruption and direct bribery (2005 Bar Exam)

If a respondent in a preliminary investigation altered the allegation in the complaint-affidavit as to the date of criminal incident to make it appear that the crime, with which he wascharged, had prescribed, the alteration is constitutive of the crime of falsification of documentunder Article 172 of the Revised Penal Code and obstruction of justice under PD No. 1829.

d. Principal of the crime - A and B killed X. After the slaughter, A and B burnedthe dead body of X in the forest to prevent its discovery. Can A and B be c harged asaccessory of the crime to murder or obstruction of justice? A and B are principals by direct


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participation in the crime of murder qualified by employment of means to afford impunity.Hence, they cannot be charged as accessories. Under the Revised Penal Code, accessoriesmust not have participated in the commission of the crime as principals. However, in addition tomurder, they can be charged with the crime of obstruction of justice for destroying an object toimpair its availability as evidence in a case. Under PD No. 1829, it is not required that theoffenders must not have participated as principals.

e. Suspicion -An accessory under Article 19 (3) of the Revised Penal Code must haveknowledge of the commission of the crime by the principal. Entertaining suspicion is not itselfproof of knowledge that a crime has been committed. Knowledge and suspicion are notsynonymous. The word suspicion is defined as being the imagination of the existence ofsomething without proof, or upon very slight evidence or upon no evidence at all (Reyes). Onthe other hand, the offender may violate Section 1 (c) of PD No. 1829 even though he has noknowledge of the commission of the crime as long as he has reasonable ground to believe orsuspects that the person he assisted has committed a crime. In some, mere suspicion isenough to establish the second element of the offense.

d. Preventing an illegal arrest Harboring or concealing a criminal suspect in order to

prevent a lawful warrantless arrest or the implementation of a warrant of arrest constitutesobstruction of justice. However, harboring or concealing a criminal suspect to prevent an illegalarrest is not a crime. The term arrestin Section 1 (c) of PD No. 1829 contemplates a lawfularrest (Posadas vs. the Hon. Ombudsman, G.R. No. 131492, September 29, 2000)

e. Accessory To make a person liable as accessory under the Revised Penal Code,it is required that he is a public officer, who acted with abuse of his public functions, or that theperson assisted is guilty as principal in treason, parricide, murder, or an attempt to take the lifeof the Chief Executive or a principal, who is known to be habitually guilty of some other crime.This requirement is not applicable if the accused is charged with obstruction of justice.

f. No exempting circumstance - Accessories are exempt from criminal liability if the

principal merely committed a light felony (Article 16 of the Revised Penal Code). Accessories ofthe second or third kind are exempt also from criminal responsibility if they are related to thecriminal actor (Article 20 of the Code). However, if the accessories of the crime were chargedwith the crime of obstruction of justice, they cannot claim criminal exemption under the RevisedPenal Code. PD No. 1829 has no provision on criminal exemption.

23. SERVICE OF MULTIPLE SENTENCES: Simultaneous service -When the culprithas to serve two or more penalties, he shall serve them simultaneously if the nature of thepenalties will so permit. Thus, convict could serve simultaneously arresto mayor and fine,prision correccional and perpetual absolute disqualification, or reclusion perpetua and civilinterdiction. In sum, while lingering in prison, convict could pay fine, return the propertyconfiscated, be disallowed to cast his vote or to act function as a public officer. In Rodriguez

vs. Director of Prisons, G.R. No. L-35386, September 28, 1972, En Banc - Penalties whichcould be served simultaneously with other penalties, are perpetual or temporary absolutedisqualification, perpetual or temporary special disqualification, public censure, suspensionfrom public office and other accessory penalties. There are only two modes of serving two ormore (multiple) penalties: simultaneously or successively. Successive service When theculprit has to serve two or more penalties, he shall serve them successively if the nature of thepenalties will not permit simultaneous service. Convict must serve multiple penaltiessuccessively: (1) where the penalties to be served are destierro and imprisonment; and (2)


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where the penalties to be served are imprisonment. However, the successive service ofsentences is subject to the three-fold rule and 40-year limitation rule.

a. Three-fold rule - The maximum period of the imprisonment that convict must sufferin serving multiple penalties must not exceed threefold the length of time corresponding to themost severe of the penalties imposed upon him. A was sentenced to suffer penalty of 7 years

ofprision mayor for serious physical injuries, 6 years of prision correccional for qualified lessserious physical injuries, 5 years of prision correccional for robbery and 5 years of prisoncorreccional for theft. The total duration of the penalties imposed on him is 23 years. The mostsevere penalty imposed on him is 7 years ofprision mayor. Thus, threefold the length of timecorresponding to the most severe of the penalties is 21 years. A will be imprisoned for 21yearsbecause of the three-fold rule.

b. Forty-year limitation rule The maximum period of the imprisonment that convictmust suffer in serving multiple penalties must not exceed forty years. A was sentenced tosuffer three penalties of 15 years of reclusion temporal for three counts of homicide and thepenalty of 10 years of prision mayor for serious physical injuries. The total duration of thepenalties imposed on him is 55 years. The most severe penalty imposed on him, is 15 years of

reclusion temporal. Thus, threefold the length of time corresponding to the most severe of thepenalties is 45 years. A will be imprisoned for 40 yearsbecause of the forty year limitationrule.

24. DESTIERRO: Destierro is a divisible penalty, which has a range from 6 months and1 day to 6 years. It is a penalty. However, destierro imposed upon a person, who killed hisspouse or her paramour, in the act of having sexual intercourse, is not a penalty but a measuredesigned to protect the offender against possible retaliation from relatives of the victim.However, it is only proper to award civil indemnity to the heirs of the victim. Death underexceptional circumstance is in the nature of an exempting circumstance that excuses theaccused from criminal liability but not his civil liability.

25. GRADUATION - Under these provisions, the fixed penalty shall be graduated byone or more degrees on the basis of the following factors:

FACTORS NUMBER OF DEGREES

Stage of ExecutionFrustrated stage ---------------------------------------------------- 1Attempted stage --------------------------------------------------- 2

Except: Frustrated homicide, parricide, murder ------ 1 or 2Attempted homicide, parricide, murder -----1 or 2

Nature of ParticipationAccomplice -------------------------------------------------------- 1

Accessory ---------------------------------------------------------- 2

Privileged Mitigating CircumstanceMinority -----------------------------------------------------------------1Incomplete justification or exemption---------------------------1 or 2

(Except: Accident)

26. COMPOSITION OF GRADUTED PENALTY: The composition of a graduatedpenalty will depend on the composition of the penalty fixed by law.


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General Rule: Single Penalty - Graduated penalty is generally a single penalty.Example If the fixed penalty is death, the penalty next lower in degree is reclusion perpetua;if the fixed penalty is reclusion perpetua, the penalty next lower in degree is reclusion temporal;if the fixed penalty is reclusion perpetua to death, the penalty next lower in degree is alsoreclusion temporal. The graduated penalty ofreclusion temporalis a single penalty.

First exception: Fixed penalty in period If the penalty is composed of single period,the graduated penalty must also be composed of single period. If the penalty prescribed by lawis arresto mayor in its maximum period, the penalty next lower in degree is arresto mayor in itsmedium period. If the penalty is composed of two periods, the graduated penalty must also becomposed of two periods. If the penalty prescribed by law arresto mayor in its maximum periodto prision correctional in its minimum period, the penalty next lower in degree is arresto mayorin its minimum and medium periods. If the penalty is composed of three periods, the graduatedpenalty must also be composed of three periods.

First Exception: Fixed penalty with period and penalty components If the fixedpenalty is composed of period component and penalty component, the graduated penalty mustbe composed of three period components. Example: The penalty prescribed by law is

reclusion temporal in its maximum period to reclusion perpetua. This penalty has a periodcomponent and a full penalty. Hence, one degree lower than this penalty must composed ofthree periods, and that is: Prision mayor in its maximum period to reclusion temporal in itsmedium period

27. SPECIAL MITIGATING CIRCUMSTANCE: Under Article 64 (5), the presence oftwo or more mitigating circumstances will graduate the divisible penalty prescribed by law toone degree lower. This is called special mitigating circumstance. However, the appreciation ofthis circumstance is subject to two conditions: (1) the penalty prescribed by law must bedivisible; and (2) there must be no aggravating circumstance. In People vs. Takbobo, G.R. No.No. 102984, June 30, 1993 - Accused was found guilty of parricide punishable by the penaltyof reclusion perpetua to death. Applying Article 63, when the penalty is composed of two

indivisible penalties, the penalty cannot be lowered by one degree, no matter how manymitigating circumstances are present. The rule on special mitigating circumstance is found in

Article 64 (5) which provides the "rules for the application of penalties which contain threeperiods," meaning, divisible penalties. Article 64 (5) is inapplicable. Thus, the rule applicable insaid case is found in Article 63, and not in Article 64.

If there are two mitigating circumstances, the penalty prescribed law shall graduated toone degree lower, and the graduated penalty shall be applied in it medium period. If there arethree mitigating circumstances taken as special mitigating, the penalty prescribed law shallgraduated to one degree lower, and the graduated penalty shall be applied in it minimumperiod. Reason: The two mitigating circumstances were taken to constitute special mitigatingcircumstance; while the remaining mitigating circumstance was used to apply the graduated

penalty in its minimum period.

28. FIXING THE PROPER IMPOSSABLE PERIOD:

1 aggravating circumstance maximum periodNo modifying circumstance medium period1 mitigating circumstance minimum period


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2 or more aggravating circumstances maximum period2 or more mitigating circumstance minimum period

Combination of aggravating and mitigating circumstances, apply the off-set rule

1 or more remaining aggravating circumstances maximum period

No remaining modifying circumstance medium period1 or more remaining mitigating circumstances minimum period

Note: (1) Special mitigating circumstance is not appreciable even if there are two or more remaining mitigatingcircumstances. (2) Off-set rule is not applicable if the aggravating circumstances are special aggravating such assyndicated-organized crime group, taken advantage of public position, quasi-recidivism, use of unlicensed firearm inhomicide or murder and under the influence of dangerous drugs. If any of these circumstances is present, thepenalty shall be applied in its maximum period regardless of the presence of mitigating circumstances.

39. APPLICABILITY OF ISLAW: Problem: The penalty prescribed by a special law isnot more than 3 years but not less than 6 months. ISLAW is not applicable if the penaltyimposed by the judge in accordance with the law does not exceed 1 year. (1) The judge cannotimpose an indeterminate penalty of 6 months to 10 months because ISLAW is not applicable.The penalty does not exceed one year. The judge should have imposed a straight penalty of10 months. (3) The judge cannot impose straight penalty of 2 years because ISLAW isapplicable. The penalty exceeds one year. Since ISLAW is applicable the judge should haveimposed an indeterminate penalty instead of a straight penalty. This is mandatory (2005 BarExam).

40. CONTINUED CRIME - In order that continuous crime may exist, there should be:(1) plurality of acts performed separately during a period of time; (2) unity of criminal intent andpurpose and (3) unity of penal provision infringed upon or violated (Santiago vs. Garchitorena ,GR NO. 109266, December 2, 1993).

a. Single occassion - In People vs. Tumlos, G.R. No. 46428, April 13, 1939, En Banc -The theft of the thirteen cows owned by six owners involved thirteen (13) acts of taking.However, the acts of takingtook place at the same time and in the same place; consequently,accused performed but one act. The intention was likewise one, namely, to take for thepurpose of appropriating or selling the thirteen cows which he found grazing in the same place.The fact that eight of said cows pertained to one owner and five to another does not make himcriminally liable for as many crimes as there are owners, for the reason that in such caseneither the intention nor the criminal act is susceptible of division.

b. General plan - In People vs. Dela Cruz, G.R. No. L-1745, May 23, 1950, it was heldthat ransacking several houses located within the vicinity of a sugar mill while two of thebandits guarded the victims with guns leveled at them is a continued crime of robbery. Several

acts of robbery were made pursuant to general planto despoil all those in the said place, whichis an indicative of a single criminal design.

c. Foreknowledge doctrine - In Gamboa vs. CA, G.R. No. L-41054, November 28,1975 - Accused cannot be held to have entertained continuously the same criminal intent inmaking the first abstraction on October 2, 1972 for the subsequent abstractions on thefollowing days and months until December 30, 1972, for the simple reason that he was notpossessed of any fore-knowledge of any deposit by any customer on any day or occasion and


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which would pass on to his possession and control. At most, his intent to misappropriate mayarise only when he comes in possession of the deposits on each business day but not infuture, since petitioner company operates only on a day-to-day transaction. As a result, therecould be as many acts of misappropriation as there are times the private respondentabstracted and/or diverted the deposits to his own personal use and benefit (People vs.Dichupa, G.R. No. L-16943, October 28, 1961).

41. DOCTRINE OF ABSORPTION - Crime is absorbed if it is a mere incident in thecommission of another crime. In the case of U.S vs. Sevilla (1 Phil. 143), the accused, whostruck the offended parties while simultaneously threatening to kill them if they would not returnhim the jewelry they have lost, was held liable for slight physical injuries. The threat wasconsidered as part of the assault. In People vs. Yebra (109 Phil. 613), it was held thatdefamatory statement uttered in the course of committing the crime of threat is not a separatecrime. The defamation was just a part of the crime of threat. The letter containing the libelousremarks is more threatening than libelous; the intent to threaten is the principal aim and objectof the letter. The libelous remarks are merely preparatory remarks culminating in the finalthreat.

42. PLANTING OF EVIDENCE - As a general rule, planting of evidence (such asunlicensed firearm) to incriminate an innocent person constitutes the crime of incriminating aninnocent person under Article 363 of RPC. However, if the incriminatory evidence planted isdangerous drugs or unauthorized explosives, the crime committed is planting of evidenceunder RA 9165 for the dangerous drug and PD 1866 as amended by RA 9516 for theexplosive. Unlike planting of explosive, PD 1866 has no provision punishing planting ofunlicensed firearm. Hence, plating of unlicensed firearm should be punished as incriminatinginnocent person under RPC.

43. POSSESION OF UNLICENSED FIREARM AND OTHER CRIME - Political crime-Under PD No. 1866, if the commission of illegal possession of unlicensed firearm is infurtherance of or incident to, or in connection with the crime of rebellion or insurrection,

sedition, orattempted coup detat, such violation shall be absorbedas an element of the crimeof rebellion, or insurrection, sedition, or attempted coup detat (People v. Rodriguez, 107 Phil.659). Homicide or murder If the offender killed a person with the use of unlicensed firearm,he is liable for homicide or murder aggravated by use of unlicensed firearm (People vs.Bergante, G.R. No. 120369-70, February 27, 1998). The law in effect has explicitlydecriminalized illegal possession of firearms. Nullum crimen, nulla poena sine lege(People vs.Presiding Judge of RTC, Muntinlupa, G.R. No. 151005, June 8, 2004). Commission of othercrimes: If the offender committed illegal possession of firearm and crime other than murder,homicide, rebellion, sedition, or coup detat, the offender cannot be prosecuted separately forillegal possession of firearm. RA 8294 prescribes a penalty for possession of unlicensedfirearm provided, that no other crime was committed. A simple reading of PD 1866 shows thatif an unlicensed firearm is used in the commission of any crime, there can be no separate

offense of simple illegal possession of firearms

44. POSSESION OF UNLICENSED FIREARM AND OTHER CRIME : Under PD No.1866 as amended by RA No. 9516, if possession of explosives is a necessary means forcommitting any of the crimes, or is in furtherance of, incident to, in connection with, by reasonof, or on occasion of any of the crimes, the penalty ofreclusion perpetuashall imposed. Hence,commission of other crime shall be considered as a qualifying circumstance that will require theimposition ofreclusion perpetuafor illegal possession of explosives. The offender can be held


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liable with either qualified illegal possession of explosive or the other crime committed such asmurder; however, the offender cannot be held liable for both since Section 3-D of PD No. 1866has adopted the rule on double jeopardy.

45. PRESCRIPTION - The crime of falsification of a public document involving a deedof sale which was registered with the Registry of Deeds, the rule on constructive notice can be

applied in the construction of Article 91. Hence, the prescriptive period of the crime shall haveto be reckoned from the time the notarized deed of sale was recorded in the Registry of Deeds(People vs. Reyes, G.R. No. 74226, July 27, 1989). Constructive notice rule is not applicable toregistration of bigamous marriage in the Office of the Civil Registrar. Furthermore, P.D. 1529,which governed registration of document involving real property, specifically provides the ruleon constructive notice. On the other hand, Act No. 3753 or the Family Code, which governedregistration of marriage do not provide rule on constructive notice (Sermonia vs. Court of

Appeals, G.R. No. 109454, June 14, 1994); hence the period of prescription commences to runon the date of actual discovery of the bigamous marriage.

a. Actionable crime -As a rule, period of prescription commence to run from the date

of discovery of its commission. However, if the crime is not yet actionable at the time of its

commission, period of prescription will commence to run from the time it becomes actionable.

In false testimony, the crime was committed at the time the accused falsely testified in court.

However, the period of prescription for false testimony commences to run from the date of the

finality of judgment of a case in which the offender testified falsely. Prior to the date of finality,

the crime is not yet actionable (People vs. Maneja, G.R. No. 47684, June 10, 1941).

In violation of BP Blg. 22, the crime is consummated upon the dishonor of the check by

the drawee bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001). However, the

period of prescription for such crime commences to run from the date of the expiration of the

five-day period from receipt of notice of dishonor by the drawer. Prior to that date, the crime is

not yet actionable since the offender can still avert criminal prosecution by satisfying theamount of the check or making arrangement for its payment within five day grace period.

Moreover, the running of prescription for crime punishable under special law shall be

interrupted upon filing of complaint with prosecutor office for preliminary investigation. It would

be absurd to consider the prescriptive period for crime under BP Blg. 22 as already running

even prior to the expiration of the grace period despite the fact that the complainant could not

cause its interruption by filing a complaint for preliminary investigation since it is not yet

actionable (See: People vs. Pangilinan, G.R. No. 152662, June 13, 2012).

b. Interruption: Filling of informationorcomplaint in court for trial orcomplaint in the

prosecutors office for preliminary investigation suspends the running of the prescription offelony (People vs Reodica vs. CA, GR NO. 125066, July 8, 1998). Likewise, the running ofprescription for crime punishable under special law shall be interrupted upon filing of complaintwith prosecutor office for preliminary investigation (Panaguiton vs. Department of Justice, G.R.No. 167571, November 25, 2008)

46. MARRIAGE IN RAPE Marriage between the offended party and the offender inseduction, abduction, acts of lasciviousness extinguishes the criminal liability of the latter andhis co-principals, accomplice and accessories (Articles 89 and 344 of RPC). But marriage


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between the offended part and offender in rape will only extinguishes criminal liability of thelatter. Article 266-C did not expressly made applicable the extinction of criminal action andpenalty in rape case by reason of marriage to co-principals, accomplice and accessories.

47. PROBATION Probation distinguished from parole and pardon (1) Grant ofprobation is judicial while that of parole and pardon is executive. (2) Probation and parole are

suspension sentence while pardon is remission of penalty. (3) Offender can only apply forprobation within the period of perfecting an appeal; offender is eligible for pardon afterconviction by final judgment; offender is eligible for parole after serving the minimum of theindeterminate penalty. (4) Offender, who was sentenced to suffer a penalty of more than 6years of imprisonment, is disqualified to apply for probation. Offender, who was sentence tosuffer reclusion perpetuaor death penalty, is not qualified for parole. However, the Presidentcan pardon offender even if the penalty imposed upon him is reclusion perpetua or deathpenalty.

a. Non-probationable offense - The accused, who was convicted by the lower court ofa non-probationable offense (frustrated homicide), but on appeal was found guilty of aprobationable offense (attempted homicide), may apply for probation upon remand of the case

to the RTC because of the following reasons: (1) The Probation Law never intended to deny anaccused his right to probation through no fault of his. The underlying philosophy of probation isone of liberality towards the accused. Such philosophy is not served by a harsh and stringentinterpretation of the statutory provisions; (2) If the accused will not be allowed to apply forprobation, he will be made to pay for the trial courts erroneous judgment with the forfeiture ofhis right to apply for probation; (3) While it is true that probation is a mere privilege, theaccused has the right to apply for that privilege; (4) It is true that under the probation law theaccused who appeals "from the judgment of conviction" is disqualified from availing himself ofthe benefits of probation. But, as it happens, two judgments of conviction have been meted outto accused: one, a conviction for frustrated homicide by the regional trial court, now set aside;and, two, a conviction for attempted homicide by the Supreme Court (Colinares vs. People,G.R. No. 182748, December 13, 2011).

b. Right of possessor of dangerous drugs to apply for probation - The rule under

Section 24 of RA No. 9165, which disqualifies drug traffickers and pushers for applying for

probations, does not extend to possessor of dangerous drugs. In Padua vs. People, G.R. No.

168546, July 23, 2008, it was held that: The law considers the users and possessors of illegal

drugs as victims while the drug traffickers and pushers as predators. Hence, while drug

traffickers and pushers, like Padua, are categorically disqualified from availing the law on

probation, youthful drug dependents, users and possessors alike, are given the chance to

mend their ways.

c. Right of child to apply for probation despite appeal - Section 4 of PD No. 968

provides: Application for probation must be filed within the period of perfecting an appeal and

no application for probation shall be entertained or granted if the defendant has perfected the

appeal from the judgment of conviction. However, RA No. 9344 has expressly amended

Section 4 of PD No. 968 and provides that a child in conflict with the law can apply for

probation at any time. Section 42 of RA No. 9344 provides: The court may, after it shall have

convicted and sentenced a child in conflict with the law, and upon application at any time, place

the child on probation in lie of service of his/her sentence taking into account the best interest

to the child. For this purpose, Section 4 of Presidential Degree No. 968, otherwise known as


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the Probation Law of 1976, is hereby amended accordingly.The phrase at any time

mentioned in Section 42 means the child in conflict with the law may file application for

probation even beyond the period of perfecting an appeal and even if the child has perfected

the appeal from the judgment of conviction.

48. PLEA BARGAINING IN DRUGS CASE - Section 23 of RA No. 9165, any personcharged under any crime involving dangerous drugs regardless of the imposable penalty shallnot be allowed to avail of the provision on plea-bargaining.

49. NOTICE OF DISHONOR IN ESTAFA CASE - The essential elements of the felonyare: (1) a check is postdated or issued in payment of an obligation contracted at the time it isissued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payeethereof. It is criminal fraud or deceit in the issuance of a check which is made punishable underthe RPC, and not the non-payment of a debt. The postdating or issuing of a check in paymentof an obligation when the offender had no funds in the bank or his funds deposited therein arenot sufficient to cover the amount of the check is a false pretense or a fraudulent act. Howeverdeceit is presumed if the drawer of the check fails to deposit the amount needed to cover his

check within threedays from receipt of notice of dishonor.

a. No notice of dishonor - If there is no notice of dishonor, the prosecution can stillprove the existence of deceit such as in a case where the accused knows that his checkingaccount is closed. The receipt by the drawer of the notice of dishonor is not an element of theestafa through bouncing check.

b. With notice of dishonor - If there is notice of dishonor, the presumption of deceitcan still be rebutted by: (1) proof that the check is issued in payment of a pre-existing obligationor (1) evidence of good faith, a defense in estafa by postdating a check. Good faith may bedemonstrated, for instance, by a debtors offer to arrange a payment scheme with his creditoror making full payment of the entire amount of the dishonored checks. However, simply empty

promise to pay complainant the value of the bum checks issued in order to induce her to partwith her property in favor of accused is not an evidence of good faith that will rebut thepresumption of deceit. (See: People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, Corona;Lopez vs. People, G.R. No. 166810, June 26, 2008, De Castro; Recuerdo vs. People, G.R. No.168217, June 27, 2006, Callejo)

50. NOTICE OF DISHONOR IN BP BLG. 22 - Notice of dishonor of a check to themaker in BP Blg. 22 must be in writing. A mere oral notice to the drawer or maker of thedishonor of his check is not enough. If the maker or drawer pays, or makes arrangements withthe drawee bank for the payment of the amount due within the five-day period from notice ofthe dishonor given to the drawer, it is a complete defense; the accused may no longer beindicted for violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the payment

of the amount due as a complete defense. Assuming that the accused had knowledge that hehad insufficient funds in the drawee bank when he issued the questioned checks, he could stillhave paid the checks or made arrangements with the drawee bank for the payment of the saidchecks if he had been duly notified of their dishonor. In not sending a notice or letter ofdishonor to the petitioner as required by law, the complaint deprived the accused of his right toavoid prosecution for violation of B.P. Blg. 22 (Sia vs. G.R. No. 149695. April 28, 2004,Callejo).


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51. FULL PAYMENT OF AMOUNT OF DISHONORED CHECKS - The full payment of

the amount appearing in the check within five banking days from notice of dishonor is a

complete defense (Lina Lim Lao v. CA, 274 SCRA 572) regardless of the strength of the

evidence offered by the prosecution (Meriz vs. People, G.R. No. 134498, November 13, 2001).

The accused has the burden to establish by convincing, satisfactory and credible evidence that

payment was made within the grace period (Arceo vs. People, G.R. No. 142641, July 17,2006). Exceptions: In Griffith vs. Hon. Court of Appeals, G.R. No. 129764, March 12, 2002 and

in Cruz vs. Cruz, G.R. No. 154128, February 8, 2007 considered full payment of the check after

the expiration of grace period of five days from receipt of notice of dishonor. The SC in these

cases applied the utilitarian doctrine instead of the mala prohibita principle. (1) In Griffith,

since the creditor have collected already more than a sufficient amount to cover the value of

the checks for payment of rentals, via auction sale, holding the debtors president to answer for

a criminal offense under B.P. 22 two years after said collection, is no longer tenable nor

justified by law or equitable considerations. (2) In Cruz vs. Cruz, petitioner made full payment

of the dishonored check after eleven (11) days from receipt of notice of dishonor. Respondent

filed the complaint almost six (6) months after the said payment.

52. INDETERMINATE OFFENSE DOCTRINE In People vs. Lamahang, G.R. No.

43530, August 3, 1935, En Banc - Accused who was caught in the act of making an opening

with an iron bar on the wall of a store was held guilty of attempted trespassing and not

attempted robbery. The act of making an opening on the wall of the store is an overt act of

trespassing since it reveals an evident intention to enter by means of force said store against

the will of its owner. However, it is not an overt act of robbery since the intention of the accused

once he succeeded in entering the store is not determinate; it is subject to different

interpretations. His final objective could be to rob, to cause physical injury to its occupants, or

to commit any other offense. In sum, the crime the he intended to commit inside the store is

indeterminate, and thus, an attempt to commit it is not punishable as attempted felony. In

People vs. Crisostomo, et al., G.R. No. L-19034, February 17 1923 The accused dragged thevictim to a rice field. Fortunately, she was saved from her captors. It was held that the purpose

of the accused in taking away the offended party could be to injure or affront her or to compel

her through force to marry one of the accused. Thus, the acts are not constitutive of attempted

coercion. Note: The accused were found guilty of illegal detention. Taking the victim reveals the

evident intention of the accused to deprive the liberty of the latter, which is the mens rea in

illegal detention. In U.S. vs. Simeon, G.R. No. 1603, April 15, 1904 - Raising a bolo and

hacking the

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