ELMER AT RANDOM

Anything from mundane to ethereal; from puerile to polemical.

Thursday, June 19, 2008

Special Penal Laws Reviewer, Part 1

INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED

TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW

Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because
Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with
reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, ’98)

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres, the Court has had occasion to so state that —

"Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which,
in view of the attending circumstances, could be properly imposed' under the Revised Penal
Code, and the minimum shall be within the range of the penalty next lower to that prescribed' for
the offense. The penalty next lower should be based on the penalty prescribed by the Code for
the offense, without first considering any modifying circumstance attendant to the commission of
the crime. The determination of the minimum penalty is left by law to the sound discretion of the
court and it can be anywhere within the range of the penalty next lower without any reference to
the periods into which it might be subdivided. The modifying circumstances are considered only
in the imposition of the maximum term of the indeterminate sentence.

"The fact that the amounts involved in the instant case exceed P22,000.00 should not be
considered in the initial determination of the indeterminate penalty; instead, the matter should
be so taken as analogous to modifying circumstances in the imposition of the maximum term of
the full indeterminate sentence. This interpretation of the law accords with the rule that penal
laws should be construed in favor of the accused. Since the penalty prescribed by law for the
estafa charge against accused-appellant is prision correccional maximum to prision mayor
minimum, the penalty next lower would then be prision correccional minimum to medium. Thus,
the minimum term of the indeterminate sentence should be anywhere within six (6) months and
one (1) day to four (4) years and two (2) months . . ."
(People v. Saley; GR 121179, July 2, ’98)

INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES:

The final query is whether or not the Indeterminate Sentence Law is applicable to the case now
before us. Apparently it does, since drug offenses are not included in nor has appellant
committed any act which would put him within the exceptions to said law and the penalty to be
imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. The more important aspect, however,
is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after
providing for indeterminate sentence for an offense under the Revised Penal Code, states that
"if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term prescribed by the same" We
hold that this quoted portion of the section indubitably refers to an offense under a special law
wherein the penalty imposed was not taken from and is without reference to the Revised Penal
Code, as discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law. There can be no sensible debate that the aforequoted rule on
indeterminate sentence for offenses under special laws was necessary because of the nature of
the former type of penalties under said laws which were not included or contemplated in the
scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range
of the penalty next lower to that prescribed by the Code for the offense," as is the rule for
felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is
justified under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by
Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code
in their technical terms, hence with their technical signification and effects. In fact, for purposes
of determining the maximum of said sentence, we have applied the provisions of the amended
Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the
same in the medium period. Such offense, although provided for in a special law, is now in the
effect punished by and under the Revised Penal Code.
(People v Martin Simon)

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT APPLICABLE;

a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or
espionage
(Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People
v. Corral, 74
Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one year.
i. Those who are already serving final judgment upon the approval of the Indeterminate
Sentence Law.
j. those offenses or crimes not punishable by imprisonment such as distierro and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE SENTENCE

Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22,
1974). Offender is not disqualified to avail of the benefits of the law even if the crime is
committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar
v. De Guzman)

NATURE OF PENALTY OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the
amendment of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible
penalty. Hence, the penalty does not have any minimum, medium and maximum period. Hence,
there is no such penalty of medium period of reclusion perpetua. (People versus Tiburcio Baculi,
246 SCRA)

IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY

Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and
the accused did not appeal, does the judgment become final and executory? No, such judgment
is null and void because it imposed a non-existent penalty. Hence, the court may nevertheless
correct the penalty imposed on the accused, that is, reclusion perpetua, it is merely performing
a duty inherent in the court. (People versus Nigel Gatward, GR No. 119772-73, February 7,
1997)

DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT

The penalty of reclusion perpetua is different from life imprisonment. The former carries with it
accessory penalties, whereas life imprisonment does not carry with it any accessory penalties;
reclusion perpetua is that provided for under the Revised Penal Code and under crimes defined
by special laws using the nomenclature under the Revised Penal Code ; life imprisonment is
that provided for violations of the Revised Penal Code. Reclusion Perpetua may be reduced by
one or two degrees while life imprisonment cannot be so reduced. (People -vs- Rolnando
Madriaga, GR No. 82293, July 23, 1992.)

WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION PERPETUA

Reclusion perpetua has accessory penalties while life imprisonment does not. However, life
imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration
of from twenty years and one day to forty years. life imprisonment may span the natural life of
the convict. (People -versus- Rallagan, 247 SCRA 537)

RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE WHEN

IMPOSED AS PENALTY

Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty
and not the penalty of life imprisonment. Where the law imposes the penalty of life
imprisonment, do not impose reclusion perpetua. (People -vs- Rolando Madriaga, 211 SCRA
698)

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING
INDIVISIBLE

There we also said that "if reclusion perpetua was reclassified as a divisible penalty, then Article
63 of the Revised Penal Code would lose its reason and basis for existence." The imputed
duration of thirty (30) years of reclusion perpetua, therefore, only serves as the basis for
determining the convict's eligibility for pardon or for the application of the three-fold rule in the
service of multiple penalties. (People -vs- Aspolinar Raganas, et al., GR No. 101188, October
12, 1999)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE THE

PENALTY BEING LIFE IMPRISONMENT

Where the accused committed qualified violation of PD 704 (fishing with the use of explosives),
the imposable penalty for which is life imprisonment to death. If the accused is entitled to a
mitigating circumstance of voluntary surrender, the court should impose life imprisonment
applying, in a suppletory character, Articles 13 and 63 of the Revised Penal Code. (People -vs-
Priscilla Balasa, GR No. 106357, September 3, 1998)

ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO

EITHER FULL OR ¾ OF HIS PREVENTIVE IMPRISONMENT

If, during the trial, the accused was detained but, after trial, he was meted the penalty of
reclusion perpetua, he is still entitled to the full credit of his preventive imprisonment because
Article 29 of the Revised Penal Code does not distinguish between divisible and indivisible
penalties. (People -vs- Rolando Corpuz, 231 SCRA 480)

QUALIFIED THEFT

QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT INVOLVED IS

OVER P22,000.00

Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is
prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the
penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the
Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than
another given penalty, and if such higher penalty is death, the penalty shall be reclusion
perpetua of forty (40) years with the accessory penalties of death under Article 40 of the
Revised Penal Code. The accused shall not be entitled to pardon before the lapse of forty (40)
years. (People -vs- Fernando Canales, 297 SCRA 667)

THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING

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

PURPOSES OF PROBATION:

a. to promote the correction and rehabilitation of an offender by providing him with personalized
community based treatment;
b. to provide an opportunity for his reformation and reintegration into the community;
c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION

The petition or application for probation must be filed directly with the Court which sentenced
the accused within 15 days from date of promulgation of the decision convicting the accused, or
in short within the period to appeal otherwise the judgment shall become final and the accused
shall be deemed to have waived his right to probation.

EFFECT OF FILING OF PETITION FOR PROBATION

Upon filing of petition for probation, the court shall suspend the execution of sentence.

Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal and
in case an appeal is made immediately after conviction, a filing of petition for probation still
within the period to appeal, that is within fifteen days from date of promulgation shall be deemed
a withdrawal of the appeal.

PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN
TO THE ACCUSED-PETITIONER?

1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be
allowed on
temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post
a bond, on
recognizance of a responsible member of a community who shall guarantee his appearance
whenever
required by the court.

IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE

CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS?

The custodian must be asked to explain why he should not be cited for contempt for failing to
produce the probationer when required by the court; Summary hearing will be held for indirect
contempt, and if custodian cannot produce the petitioner, nor to explain his failure to produce
the petitioner, the custodian on recognizance shall be held in contempt of court.

WHAT IS A POST SENTENCE INVESTIGATION REPORT?

It is a report of the Parole and Probation Officer after conducting post sentence investigation
and interviews containing the circumstances surrounding the offense for which the petitioner
was convicted. The findings should be drawn from the court records, police records, statement
of defendants, the aggrieved party and other persons who may know the petitioner and all other
matters material to the petition.

It will also include the psychological and social information regarding the probationer; evaluation
of the petitioner; suitability for probation; his potential for rehabilitation; and may include the
program for supervision and suggested terms of conditions of probation and a recommendation
either to deny or grant the probation.

WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?

a. To present himself to the probation officer concerned for supervision within 72 hours from
receipt of said
order and

b. to report to the probation officer at least once a month during the period of probation.

WHAT ARE THE OTHER CONDITIONS OF PROBATION?

a. cooperate with a program of supervision;

b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge said employment without prior
written
approval of the probation officer;
d. comply with a program of payment of civil liability to the victim of his heirs;
e. undergo medical, psychological or psychiatric examination and treatment and/or enter and
remain in a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;
g. attend or reside in a facility established for instruction or recreation of persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker to visit his home and place of work;
k. reside at premises approved by the court and not to change his residence w/o prior written
approval; and
l. satisfy any other condition related to the rehabilitation of the probationer and not unduly
restrictive of his
liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )

RULES ON OUTSIDE TRAVEL OF PROBATIONER

A probationer who desires to travel outside the jurisdiction of the city or provincial probation
officer for not more than 30 days, the permission of the parole and probation officer must be
sought. If for more than thirty (30) days, aside from the permission of the parole and probation
officer, the permission of the court must likewise be sought.

EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION

a. If the accused appeals his conviction for the purpose of totally reversing his conviction, he is
deemed to have waived his right to probation.

b. The rule that if the accused appeals his conviction only with respect to the penalty, as he
believes the penalty is excessive or wrong, as the penalty is probationable, and the appellate
court sustains the accused may still apply for probation, has already been abandoned. An
appeal therefore, irrespective of its purpose, to overturn the entire decision or only with respect
to penalty is a waiver to probation, has already been abandoned. An appeal therefore,
irrespective of its purpose, to overturn the entire decision or only with respect to penalty is a
waiver to probation.

CONFIDENTIALITY OF RECORDS OF PROBATION

The investigation report and the supervision and history of a probationer obtained under PD No.
968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to
anyone other than the probation administration or the court concerned the court which granted
the probation or where the probation was transferred may allow the probationer to inspect the
aforesaid documents or his lawyer, whenever such disclosure may be desirable or helpful to
them.

Any government office may ask for the records of probation from the court for its official use or
from the administrator.

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. The

penalty of imprisonment ranging from six months and one day to six years and a fine ranging
from hundred to six thousand pesos shall be imposed upon any person who violates Section 17
hereof.

MODIFICATION OF CONDITION OR PERIOD OF PROBATION

The court, on motion, or motu propio may modify the conditions of probation or modify the
period of probation as circumstances may warrant.

WHO ARE DISQUALIFIED TO UNDERGO PROBATION

1. Those sentenced to serve a maximum term of imprisonment of more than six years.
2. Those convicted of any offense against the security of the state;
3. Those who have been previously convicted by final judgment of an offense punished by
imprisonment of not less than one moth and one day and/or a fine of not less than P200.00;
4. Those who have been once on probation under the provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.

PERIOD OF PROBATION

1. If the probationer has been sentenced to an imprisonment of not more than one year, the
probation shall not exceed two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not be less than the period of subsidiary
imprisonment nor more than twice of the subsidiary imprisonment.

AMENDMENT TO SECTION 4 OF PD 968:

"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within
the period for perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem
best; Provided, That no application for probation shall be entertained or granted if the defendant
has perfected the appeal from the judgment of conviction.

"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.
An application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.

"An order granting or denying probation shall not be appealable."

Thus, a person who was sentenced to destierro cannot apply for probation. Reason: it does not
involved imprisonment or fine. (PD 1990)
JURISPRUDENCE

UNDERLYING PHILOSOPHY OF PROBATION

The underlying philosophy of probation is indeed one of liberality towards the accused. It is not
served by a harsh and stringent interpretation of the statutory provisions. Probation is a major
step taken by our Government towards the deterrence and minimizing of crime and the
humanization of criminal justice. In line with the public policy behind probation, the right of
appeal should not be irrevocably lost from the moment a convicted accused files an application
for probation. Appeal and probation spring from the same policy considerations of justice,
humanity, and compassion. (Yusi v Morales, 4/28/83)

PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly
noted in U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized
society and only incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No.
63400, 3/18/83). Even if a convicted person is not included in the list of offenders disqualified
from the benefits of a decree, the grant of probation is nevertheless not automatic or ministerial,
(Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition for probation may be denied by
the Court.

MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION.

The main criterion laid down by the Probation law in determining who may be granted probation
is based on the penalty imposed and not on the nature of the crime. By the relative lightness of
the offense, as measured by the penalty imposed, more than by its nature, as the law so
ordains the offender is not such a serious menace to society as to be wrested away therefrom,
as the more dangerous type of criminals should be. Hence, in the case at bar, the first reason
given by the respondent judge for his denial of the petition for probation that, "probation will
depreciate the seriousness of the offense committed" would thus be writing into the law a new
ground for disqualifying a first-offender from the benefits of probation. (Santos v. Cruz-Pano,
1/17/83)

TIMELINESS OF FILING APPLICATION FOR PROBATION

The accused must file a Petition for Probation within the period for appeal. If the decision of
conviction has become final and executory, the accused is barred from filing a Petition for
Probation (Pablo Francisco v. C.A., 4/6/95).

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI

Although an order denying probation is not appealable, the accused may file a motion for
Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND

FINALITY OF JUDGEMENT

A judgment of conviction becomes final when the accused files a petition for probation.
However, the judgement is not executory until the petition for probation is resolved. The filing of
the petition for probation is a waiver by the accused of his right to appeal the judgement of
conviction (Heirs of Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH

CONVICTION IS PROBATIONABLE

." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty,
separately and distinctly with the others. Consequently, even if petitioner was supposed to have
served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of
prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each
crime committed on each date of each case, as alleged in the information(s)," and in each of the
four (4) informations, he was charged with having defamed the four (4) private complainants on
four (4) different, separate days, he was still eligible for probation, as each prison term imposed
on petitioner was probationable. (Francisco v. CA; 4/16/95)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT
FOR PROBATION.

Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based
on the assumption that those sentenced to higher penalties pose too great a risk to society, not
just because of their demonstrated capability for serious wrongdoing but because of the gravity
and serious consequences of the offense they might further commit. The Probation Law, as
amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9
in relation to Art. 25 of The Revised Penal Code, and not necessarily those who have been
convicted of multiple offenses in a single proceeding who are deemed to be less perverse.
Hence, the basis of the disqualification is principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six
(6) years are not generally considered callous, hard core criminals, and thus may avail of
probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE

GOVERNMENT DESPITE PROBATION

Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime," "one
of the most pernicious evils that has ever crept into our society." For those who become
addicted to it "not only slide into the ranks of the living dead, what is worse, they become a
grave menace to the safety of law-abiding members of society," while "peddlers of drugs are
actually agents of destruction. The deserve no less than the maximum penalty [of death]."

There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every
thing which is done contrary to justice, honesty, modesty or good morals" including "acts of
baseness, vileness, or depravity in the private and social duties which a man owes to his
fellowmen or to society in general, contrary to the accepted rule of right and duty between man
and man." Indeed nothing is more depraved than for anyone to be a merchant of death by
selling prohibited drugs, an act which, as this Court said in one case,"often breeds other crimes.
It is not what we might call a 'contained' crime whose consequences are limited to that crime
alone, like swindling and bigamy. Court and police records show that a significant number of
murders, rapes, and similar offenses have been committed by persons under the influence of
dangerous drugs, or while they are 'high.' While spreading such drugs, the drug-pusher is also
abetting, through his agreed and irresponsibility, the commission of other crimes." The image of
the judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose
of the Probation Law (P.D. No. 968, as amended) is to save valuable human material, it must
not be forgotten that unlike pardon probation does not obliterate the crime of which the person
under probation has been convicted. The reform and rehabilitation of the probationer cannot
justify his retention in the government service. He may seek to reenter government service, but
only after he has shown that he is fit to serve once again. It cannot be repeated too often that a
public office is a public trust, which demands of those in its service the highest degree of
morality. (OCA v. Librado 260 SCRA 624, 8/22/96)

PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE

DISCHARGE FROM PROBATION IN CERTAIN CASES

Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of the
attendant conditions therefor and the various certifications attesting to his righteous, peaceful
and civic-oriented character prove that he has taken decisive steps to purge himself of his
deficiency in moral character and atone for the unfortunate death of Raul I. Camaligan. The
Court is prepared to give him the benefit of the doubt, taking judicial notice of the general
tendency of the youth to be rash, temerarious and uncalculating. Let it be stressed to herein
petitioner that the lawyer's oath is not a mere formality recited for a few minutes in the glare of
flashing cameras and before the presence of select witnesses. Petitioner is exhorted to conduct
himself beyond reproach at all times and to live strictly according to his oath and the Code of
Professional Responsibility. And, to paraphrase Mr. Justice Padilla's comment in the sister case
of Re: Petition of Al Argosino To Take The Lawyer's Oath, Bar Matter No. 712, March 19, 1997,
"[t]he Court sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been
giving to his community. As a lawyer he will now be in a better position to render legal and other
services to the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98)

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT

REQUIRED
The mere expiration of the period for probation does not, ipso facto, terminate the probation.
Probation is not co-terminus with its period, there must be an order from the Court of final
discharge, terminating the probation. If the accused violates the condition of the probation
before the issuance of said order, the probation may be revoked by the Court (Manuel Bala v.
Martinez, 181 SCRA 459).

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)

DEFINITION

Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is “the act of any person who,
with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or
anything of value which he knows or should be known to him, or to have been derived from the
proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July
94).

BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of 1979 was
enacted under the authority of therein President Ferdinand Marcos. The law took effect on
March 2, 1979. The Implementing Rules and Regulations of the Anti-Fencing Law were
subsequently formulated and it took effect on June 15, 1979.

THE PURPOSE OF ENACTING PD 1612

The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of
government and private properties. With the existence of "ready buyers", the "business" of
robbing and stealing have become profitable. Hence, a law was enacted to also punish those
who buy stolen properties. For if there are no buyers then the malefactors could not profit from
their wrong doings.

WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED

"Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft. A
"Fence" includes any person, firm, association corporation or partnership or other organization
who/ which commits the act of fencing.
WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:

The person liable is the one buying, keeping, concealing and selling the stolen items. If the
fence is a corporation, partnership, association or firm, the one liable is the president or the
manager or the officer who knows or should have know the fact that the offense was committed.

The law provide for penalty range for persons convicted of the crime of fencing. Their penalty
depends on the value of the goods or items stolen or bought:

a. The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos
but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding one year for
each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory
penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

b. The penalty of prision correccional in its medium and maximum periods, if the value of the
property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos;

c. The penalty of prision correccional in its minimum and medium periods, if the value of the
property involved is more than 200 pesos but not exceeding 6,000 pesos;

d. The penalty of arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property involved is over 50 but not exceeding 200 pesos;

e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not
exceeding 50 pesos.

f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.

RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND GOODS

The law requires the establishment engaged in the buy and sell of goods to obtain a clearance
or permit to sell "used second hand items", to give effect to the purpose of the law in putting an
end to buying and selling stolen items. Failure of which makes the owner or manager liable as a
fence.

The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell
used or secondhand items. It provided for the definition of the following terms:

1. "Used secondhand article" shall refer to any goods, article, items, object or anything of value
obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or
in fact been used.

2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation,

association or any other entity or establishment not licensed by the government to engage in the
business of dealing in or of supplying the articles defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the
buying and selling used secondhand articles, as defined in paragraph hereof;

4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for
the purpose of resale to third persons;

5. "Station Commander" shall refer to the Station Commander of the Integrated National Police
within the territorial limits of the town or city district where the store, establishment or entity
dealing in the buying and selling of used secondhand articles is located.

PROCEDURE FOR SECURING PERMIT/CLEARANCE

The Implementing Rules provided for the method of obtaining clearance or permit. No fee will be
charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be
punished as a fence, that may result to the cancellation of business license.

1. The Station Commander shall require the owner of a store or the President, manager or
responsible officer in having in stock used secondhand articles, to submit an initial affidavit
within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits
once every fifteen (15) days within five (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and addresses from whom the
articles were acquired.
b. Full list of articles to be sold or offered for sale including the time and place of sale
c. Place where the articles are presently deposited.

The Station Commander may, require the submission of an affidavit accompanied by other
documents showing proof of legitimacy of acquisition.

2. Those who wish to secure the permit/clearance, shall file an application with the Station
Commander concerned, which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the name and address of the unlicensed
dealer or supplier from whom such article was acquired.
c. Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the application and may
require the presentation of other additional documents, if necessary, to show satisfactory proof
of the legitimacy of acquisition of the article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall
cause the publication of the notice, at the expense of the one seeking clearance/permit, in a
newspaper of general circulation for two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they were acquired
> that such articles are to be sold or offered for sale to the public at the address of the store,
establishment or other entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the clearance/permit
shall, post a notice daily for one week on the bulletin board of the municipal building of the town
where the store, firm, establishment or entity is located or, in the case of an individual, where
the articles in his possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made
to any of the articles enumerated in the notice, the Station Commander shall issue the
clearance or permit sought.
6. If before expiration of the same period for the publication of the notice or its posting, it shall
appear that any of the articles in question is stolen property, the Station Commander shall hold
the article in restraint as evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In
any case it shall be the duty of the Station Commander concerned to advise/notify the
Commission on Audit of the case and comply with such procedure as may be proper under
applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt of the application,
act thereon by either issuing the clearance/permit requested or denying the same. Denial of an
application shall be in writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may appeal the same
within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now
PNP) Director. The decision of the Director can still be appealed top the Director-General, within
10 days, whose decision may be appealed with the Minister (now Secretary) of National
Defense, within 15 days, which decision is final.

PRESUMPTION

Mere possession of any good, article, item, object or anything fo value which has been the
subject of robbery or thievery, shall be prima facie evidence of fencing.

ELEMENTS

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or accomplice in the commission of the crime of robbery
or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything of value, which has been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, or object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Dizon-
Pamintuan vs People, GR 111426, 11 July 94)

As regards the first element, the crime of robbery or theft should have been committed before
crime of fencing can be committed. The person committing the crime of robbery or theft, may or
may not be the same person committing the crime of fencing. As in the case of D.M. Consunji,
Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified
theft had been committed. In People vs. Lucero there was first a snatching incident, where the
bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City,
where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers
Manuel Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero.
Consequently, Lucero was charged with violation of the Anti-Fencing Law. However, in this
case, no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution
was not strong enough to convict him.

The second element speaks of the overt act of keeping, buying, receiving, possessing,
acquiring, concealing, selling or disposing or in any manner deals with stolen items. It is thus
illustrated in the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and
kept in his bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires
with rims owned by Loui Anton Bond.

The accused known or should have known that the goods were stolen. As pointed out in the
case of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was
impossible for her to know that the jewelry were stolen because of the fact that Crisilita was
willing to part with a considerable number of jewelry at measly sum, and this should have
apprised Norma of the possibility that they were stolen goods. The approximate total value of
the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only
P2,700. The court also considered the fact that Norma engage in the business of buying and
selling gold and silver, which business is very well exposed to the practice of fencing. This
requires more than ordinary case and caution in dealing with customers. As noted by the trial
court:

". . . the Court is not inclined to accept the accused's theory of buying in good faith and
disclaimer of ever seeing, much more, buying the other articles. Human experience belies her
allegations as no businessman or woman at that, would let go of such opportunities for a clean
profit at the expense of innocent owners.’’

The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing
crates and G.I. pipes were found displayed on petitioner's shelves inside his compound.
(Dunalao, Sr. v. CA, 08/22/96)

In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This
case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading,
owned by the spouses Muere. The store is engaged in buying and selling of second hand
merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn's Audio,
an existing establishment. The court held that there is no proof that the spouses Muere, had
knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from
a known merchant and the unit is displayed for sale in their store. These actions are not
indicative of a conduct of a guilty person.

On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v.
Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic
plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales
and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy.
Respondents presented sales receipts covering their purchase of the items from Paramount
Industrial, which is a known hardware store in Caloocan, thus they had no reason to suspect
that the said items were products of theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain
need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The
crimes punishable by special laws are called "acts mala prohibita". The rule on the subject is
that in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v.
People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is
immaterial.

Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the Anti-
Fencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent
to gain is a mental state, the existence if which is demonstrated by the overt acts of the person.
The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again,
intent to gain is a mental state, the existence of which is demonstrated by the overt acts of
person, as the keeping of stolen items for subsequent selling.

A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612

The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the
preference for the latter would seem inevitable considering that fencing is a malum prohibitum,
and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on
the value of the property. (supra)

MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING

Since Sec. 5 of PD NO. 1612 expressly provides that “mere possession of any good, article,
item, object or anything of value which has been the subject of robbery or thievery shall be
prima facie evidence of fencing” it follows that the accused is presumed to have knowledge of
the fact that the items found in her possession were the proceeds of robbery or theft. The
presumption does not offend the presumption of innocence enshrined in the fundamental law.

DISTINCTION BETWEEN FENCING AND ROBBERY

The law on fencing does not require the accused to have participation in the criminal design to
commit or to have been in any wise involved in the commission of the crime of robbery or theft.
Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can
be consummated. (People v De Guzman, GR 77368).

Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything.

On the other hand, fencing is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any article, item, object or anything of value which he knows,
or shall be known to him, to have been derived from the proceeds of the crime of robbery or
theft.
FENCING AS A CRIME INVOLVING MORAL TURPITUDE.

In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the fact that property
received is stolen displays the same degree of malicious deprivation of one's rightful property as
that which animated the robbery or theft which by their very nature are crimes of moral
turpitude. (Dela Torre v. COMELEC 07/05/96)

Moral turpitude can be derived from the third element - accused knows or should have known
that the items were stolen. Participation of each felon, one being the robber or the thief or the
actual perpetrators, and the other as the fence, differs in point in time and degree but both
invaded one's peaceful dominion for gain. (Supra) Both crimes negated the principle of each
person's duty to his fellowmen not to appropriate things that they do not own or return
something acquired by mistake or with malice. This signifies moral turpitude with moral
unfitness.

In the case of Dela Torre, he was declared disqualified from running the position of Mayor in
Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification
under Sec. 40 of the Local Government Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement for an offense involving moral
turpitude..."

Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he
admitted all the elements of the crime of fencing.

ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells
or disposes of any object of value which he knows or should he known to him to have been
derived from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT

NECESSARY IN ANTI-FENCING

The law does not require proof of purchase of the stolen articles by petitioner, as mere
possession thereof is enough to give rise to a presumption of fencing.

It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing
evidence. (Caoili v. CA; GR 128369, 12/22/97)

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW
ACTS PUNISHABLE:

a. any person who makes or draws and issues any check to apply on account or for value,
knowing at the time of issue that he does not have sufficient funds in or credit with the drawee
bank, for the payment of such check in full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid reason, ordered the bank
to stop payment.

b. Any person who having sufficient funds in or credit with the drawee bank when he makes or
draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety days from date appearing thereon,
for which reason, it is dishonored by the drawee bank.

HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22

To establish her guilt, it is indispensable that the checks she issued for which she was
subsequently charged, be offered in evidence because the gravamen of the offense charged is
the act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict
complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of
a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross
ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error
in judgment, for which, as a general rule, he cannot be held administratively liable. In this
regard, we reiterate the prevailing rule in our jurisdiction as established by current
jurisprudence. (Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION

Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the
drawer of the check that the same was dishonored, if the same is presented within ninety days
from date of issuance, and upon notice the drawer has five days within which to make
arrangements for the payment of the check or pay the same in full.

DUTY OF THE DRAWEE BANK

The drawee bank has the duty to cause to be written, printed or stamped in plain language
thereon, or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. If
the drawee bank fails to do so, prosecution for violation of BP 22 may not prosper.

RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT

The drawee bank has not only the duty to indicate that the drawer stopped the payment and the
reason for the stop payment. The drawee bank is further obligated to state whether the drawer
of the check has sufficient funds in the bank or not.
AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE

In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the
issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is
presented to the bank and the same was dishonored due to insufficiency of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT

Checks issued in payment for installment covered by promissory note and said checks
bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that
the drawer, upon signing of the promissory note, closed his account. Said check is still with
consideration. (Caram Resources v. Contreras)

In this case, the Judge was even held administratively liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

A check drawn against a dollar account in a foreign country is still violative of the provisions of
BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is
payable outside of the Philippines (De Villa v. CA)

GUARANTEE CHECKS, DRAWER, STILL LIABLE

The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it
is malum prohibitum.

In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of
certain equipment, even knowing that he has no funds or insufficient funds in the bank is not
liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no
obligation to make good the check because there is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND

PURPOSE OF THE LAW

The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum
prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not
prerequisite for conviction.

The agreement surrounding the issuance of the checks need not be first locked into, since the
law has provided that the mere issuance of any kind of check; regardless of the intent of the
parties, i.e., whether the check is intended merely to serve as guarantee or deposit, but which
checks is subsequently dishonored, makes the person who issued the check liable. (Lazaro vs
CA, et al., GR 105461).

CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS FOR
VIOLATION OF BP 22?

Yes. Paragraph 2 of Section 1 of BP 22 provides:

The same penalty shall be imposed upon any person who having sufficient funds in or credit
with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if presented within a period of
90 days from the date appearing thereon, for which reason, it is dishonored by the drawee bank.

RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE

In the case of De la Cruz vs. Concepcion this Court declared:

"Mere errors in the appreciation of evidence, unless so gross and patent as to produce an
inference of ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant
and immaterial in an administrative proceeding against him. No one, called upon to try facts or
interpret the law in the process of administering justice, can be infallible in his judgment. All that
is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing,
assess the different factors that emerge therefrom and bear on the issues presented, and on the
basis of the conclusions he finds established, with only his conscience and knowledge of the
law to guide him, adjudicate the case accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95-
1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22

In the crime of estafa, deceit and damage are essential elements of the offense and have to be
established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks
Law, on the other hand, the elements of deceit and damage are neither essential nor required.
Rather, the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to
apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that
he does not have sufficient funds in or credit with the drawee bank for the payment of such
check in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would have been dishonored for the same reason had
not the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals,
GR 119000, July 28, 1997)

JURISDICTION IN BP 22 CASES

In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is
true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No.
L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only
the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing
check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could
have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 75217-
18, September 11, 1987 "the determinative factor (in determining venue) is the place of the
issuance of the check". However, it is likewise true that knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds, which is an essential ingredient of the
offense is by itself a continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga.

And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation
in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs.
Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando Pampanga and therefore within the
jurisdiction of the Court below.

This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held:

Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act
is committed when one 'makes or draws and issues any check [sic] to apply on account or for
value, knowing at the time issue that he does not have sufficient funds' or having sufficient
funds in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a
credit to cover the full amount of the check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored by the drawee bank," "knowledge"
is an essential ingredient of the offense charge. As defined by the statute, knowledge, is, by
itself, a continuing eventuality, whether the accused be within one territory or another. This
being the case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No.
2089-R (688).

Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs.
Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The
allegation in the information under consideration that the offense was committed in Baguio City
is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio
City.

In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to
the second error wherein the petitioner asserted that the checks were issued "as a guarantee
only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of
a pre-existing obligation, the Court of Appeals pointed out that the petitioner obviously failed to
distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal
Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were
issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks
within its contemplation are issued in payment of an obligation or merely to guarantee the said
obligation and the history of its enactment evinces the definite legislative intent to make the
prohibition all-embracing. (Ibasco vs CA, 9/5/96)
ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22

Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check
upon its presentment is an essential element of the offense. There is a prima facie presumption
of the existence of this element from the fact of drawing, issuing or making a check, the
payment of which was subsequently refused for insufficiency of funds. It is important to stress,
however, that this is not a conclusive presumption that forecloses or precludes the presentation
of evidence to the contrary. (Lim Lao v CA; 6/20/97)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES
OF BP 22 A DEFENSE

After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not
have actual knowledge of the insufficiency of funds in the corporate accounts at the time she
affixed her signature to the checks involved in this case, at the time the same were issued, and
even at the time the checks were subsequently dishonored by the drawee bank.

The scope of petitioner's duties and responsibilities did not encompass the funding of the
corporation's checks; her duties were limited to the marketing department of the Binondo
branch. Under the organizational structure of Premiere Financing Corporation, funding of
checks was the sole responsibility of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE

There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case
because no notice of dishonor was actually sent to or received by the petitioner.

The notice of dishonor may be sent by the offended party or the drawee bank. The trial court
itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank
based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with
the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there
was no need to inform them as the corporation was in distress." The Court of Appeals affirmed
this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court.
(Lim Lao v CA; 6/20/97)

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

ANTI-GRAFT AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.

(a) Persuading, inducing or influencing another public officer to perform an act constituting a
violation of rules and regulations duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing himself to be persuaded, induced, or
influenced to commit such violation or offense.

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit,
for himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to
intervene under the law.

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section thirteen of this Act.

(d) Accepting or having any member of his family accept employment in a private enterprise
which has pending official business with him during the pendency thereof or within one year
after its termination.

(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.

( f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of
or discriminating against any other interested party.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and
grossly disadvantageous to the same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.

(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in
any transaction or act requiring the approval of a board, panel or group of which he is a
member, and which exercises discretion in such approval, even if he votes against the same or
does not participate in the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers responsible for the
approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel
or group to which they belong.
( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any
person not qualified for or not legally entitled to such license, permit, privilege or advantage, or
of a mere representative or dummy of one who is not so qualified or entitled.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on
account of his official position to unauthorized persons, or releasing such information in advance
of its authorized release date.

UNEXPLAINED WEALTH, MEANING

Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the
provisions of RA 1379, a public official has been found to have acquired during his incumbency,
whether in his name or in the name of other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his other lawful income, that fact shall be a
ground for dismissal or removal.

Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a
mere ordinary token of gratitude or friendship according to local customs or usage shall be
exempted from the provision of this act.

MEANING OF “CAUSING UNDUE INJURY”

The act of giving any private party any unwarranted benefit, advantage or preference is not an
indispensable element of causing any undue injury to any part, although there may be instances
where both elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93).

In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in causing undue
injury does not refer only to those who are in charge of giving permits, licenses or concessions
but all acts of public officers or employees which have caused undue injury to others.

ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

a. the offender is a public officer;

b. the said officer has neglected or has refused to act without sufficient justification after due
demand or request has been made upon him;
c. reasonable time has elapsed from such demand or request without the public officer having
acted on the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or indirectly from any person
interested in the matter some pecuniary or material benefit or advantage in favor of an
interested party or discriminating against another. Coronado v Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH,
OR INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:

xxx xxx xxx

(e). Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING

FACTS, VIZ:

a. the accused is a public officer discharging administrative or official functions or private

persons charged in conspiracy with them;

b. the public officer committed the prohibited act during the performance of his official duty or in
relation to his public position;

c. the public officer acted with manifest partiality evident bad faith or gross, inexcusable
negligence; and

d. his action caused undue injury to the government or any private party, or gave any party any
unwarranted benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared
unlawful. Its reference to any public officer is without distinction or qualification and it specifies
the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last
inclusion of officers and employees of offices or government corporations which, under the
ordinary concept of “public officer” may not come within the term. It is a strained construction of
the provision to read it as applying exclusively to public officers charged with the duty of
granting license or permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA 399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO

DETERMINE
WHETHER INFORMATION IS VALID OR NOT

It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the
Court) to suspend any public officer against whom a valid information charging violation of this
law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds
or property is filed in court. The court trying a case has neither discretion nor duty to determine
whether preventive suspension is required to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office.
All that is required is for the court to make a finding that the accused stands charged under a
valid information for any of the above-described crimes for the purpose of granting or denying
the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235
SCRA 103).In the same case, the Court held that "as applied to criminal prosecutions under RA
3019, preventive suspension will last for less than ninety (90) days only if the case is decided
within that period; otherwise, it will continue for ninety (90) days." (Conducto v. Monzon; A.M.
No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE
CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM

Judge Monzon's contention denying complainant's Motion for Suspension because "offenses
committed during the previous term (is) not a cause for removal during the present term" is
untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212
SCRA 768, the Court held that "the rule is that a public official cannot be removed for
administrative misconduct committed during a prior term since his re-election to office operates
as a condonation of the officer's previous misconduct committed during a prior term, to the
extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no
application to criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18
December 1967, 21 SCRA 1292, that "The ruling, therefore, that 'when the people have elected
a man to office it must be assumed that they did this with knowledge of his life and character
and that they disregarded or forgave his faults or misconduct if he had been guilty of any' refers
only to an action for removal from office and does not apply to a criminal case"

Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term
as barangay chairman and the Motion for his suspension was only filed in 1995 during his
second term, his re-election is not a bar to his suspension as the suspension sought for is in
connection with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY

BUT
NOT HIS CRIMINAL LIABILITY

As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that the re-
election of a public official extinguishes only the administrative, but not the criminal, liability
incurred by him during his previous term of office, thus:

The ruling, therefore, that — "when the people have elected a man to his office it must be
assumed that they did this with knowledge of his life and character and that they disregarded or
forgave his faults or misconduct if he had been guilty of any" — refers only to an action for
removal from office and does not apply to criminal case, because a crime is a public wrong
more atrocious in character than mere misfeasance or malfeasance committed by a public
officer in the discharge of his duties, and is injurious not only to a person or group of persons
but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code,
which enumerates the grounds for extinction of criminal liability, does not include reelection to
office as one of them, at least insofar as a public officer is concerned. Also, under the
Constitution, it is only the President who may grant the pardon of a criminal offense. (Conducto
v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019

It is mandatory for the court to place under preventive suspension a public officer accused
before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition
thereof is the existence of a valid information, determined at a pre-suspension hearing. Such a
hearing is in accord with the spirit of the law, considering the serious and far-reaching
consequences of a suspension of a public official even before his conviction, and the demands
of public interest for a speedy determination of the issues involved in the case. The purpose of
the pre-suspension hearing is basically to determine the validity of the information and thereby
furnish the court with a basis to either suspend the accused and proceed with the trial on the
merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of
the proceeding which impairs its validity. The accused should be given adequate opportunity to
challenge the validity or regularity of the criminal proceedings against him; e.g. that he has not
been afforded the right to due preliminary investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his
mandatory suspension from office under Section 13 of the Act; or that the information is subject
to quashal on any of the grounds set out in Rule 117 of the Rules of Court. But once a proper
determination of the validity of the information has been made, it becomes the ministerial duty of
the court to forthwith issue the order of preventive suspension. The court has no discretion, for
instance, to hold in abeyance the suspension of the accused official on the pretext that the order
denying the latter's motion to quash is pending review before the appellate courts. (Segovia v.
Sandiganbayan; GR 124067, Mar. 27, 1998)

GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES

"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA
187), we have set out the guidelines to be followed by the lower courts in the exercise of the
power of suspension under Section 13 of the law, to wit:

(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension
from office of public officers charged under a valid information under the provisions of Republic
Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section
13 of said Act, it may be briefly stated that upon the filing of such information, the trial court
should issue an order with proper notice requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered suspended from office pursuant to the
cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion
for an order of suspension or the accused in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for
determining the validity of the information, and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the validity of the information or withhold
such suspension in the contrary case.

(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not constitute a violation of the provisions
of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would
warrant his mandatory suspension from office under Section 13 of the Act, or he may present a
motion to quash the information on any of the grounds provided in Rule 117 of the Rules of
Court. The mandatory suspension decreed by the act upon determination of the pendency in
court or a criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid
information requires at the same time that the hearing be expeditious, and not unduly protracted
such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say,
finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon
to issue the suspension order upon its upholding the validity of the information and setting the
same for trial on the merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC.
3(e) of RA 3019

xxx xxx xxx

(c) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions."

To hold a person liable under this section, the concurrence of the following elements 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 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;
and
(4) That the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence." (Llorente v. Sandiganbayan; GR 122166, Mar. 11, 1998)

MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

"Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose
or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some
motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v Beacon Participations, 8
NE 2nd Series 895, 1007). It contemplates a state of mind affirmatively operating with furtive
design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso,
18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of
the accused to do wrong or cause damage."

In Jacinto, evident bad faith was not appreciated because the actions taken by the accused
were not entirely without rhyme or reason; he refused to release the complainant's salary
because the latter failed to submit her daily time record; he refused to approve her sick-leave
application because he found out that she did not suffer any illness; and he removed her name
from the plantilla because she was moonlighting during office hours. Such actions were
measures taken by a superior against an erring employee who studiously ignored, if not defied,
his authority. (Llorente v. Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019

It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the
delay in his acting on them more properly falls under Sec. 3[f]:

"(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some pecuniary or material benefit or
advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or
discriminating against any other interested party."

Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of
undue injury. Thus, its elements are:

"1) The offender is a public officer;

2) Said officer has neglected or has refused to act without sufficient justification after due
demand or request has been made on him;
3) Reasonable time has elapsed from such demand or request without the public officer having
acted on the matter pending before him; and
4) Such failure to so act is 'for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage in favor of an
interested party, or discriminating against another."

However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not
proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his
constitutional right to due process. (Llorente v. Sandiganbayan)

SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS

On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan
erred in imposing a 90 day suspension upon petitioner for the single case filed against him.
Under Section 63 (b) of the Local Government Code, "any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days." (Rios v. Sandiganbayan; GR 129913,
Set. 26, 1997)

APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official charged in a valid information with an offense
punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that
he "shall be suspended from office" pendente lite must be obeyed. His approved leave of
absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an
approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at
will by the incumbent. (Doromal v. Sandiganbayan; GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A

GROUND TO DISMISS

After a careful review of the facts and circumstances of this case, we are constrained to hold
that the inordinate delay in terminating the preliminary investigation and filing the information in
the instant case is violative of the constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him. Accordingly, the informations in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of
the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v.
Sandiganbayan)

DEATH PENALTY LAW

(RA 7659)

PROSTITUTES CAN BE A VICTIM OF RAPE

As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot
absolve him of his liability for rape. First, prostitutes can be victims of rape. (People v. Alfeche)

REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE

Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy

the law accords to human abode. The dwelling need not be owned by the victim. Thus, in
People v. Basa, dwelling was appreciated, although the victims were killed while sleeping as
guests in the house of another. As aptly stated in People v. Balansit: "[O]ne does not lose his
right of privacy where he is offended in the house of another because as [an] invited guest [or a
housemaid as in the instant case], he, the stranger, is sheltered by the same roof and protected
by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment,
"home" to him. He is entitled to respect even for that short moment." (People v. Alfeche)

WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. 15 OF

THE RPC

Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne,
in this case, has been treated by Congress in the nature of a special circumstance which makes
the imposition of the death penalty mandatory. Hence, relationship as an alternative
circumstance under Article 15 of the Revised Penal Code, appreciated as an aggravating
circumstance, should no longer be applied in view of the amendments introduced by R.A. No.
7659. It may be pointed, however, that without the foregoing amendment, relationship would still
be an aggravating circumstance in the crimes of rape (Article 335) and acts of lasciviousness
(Article 336). 57

If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal
Code, the penalty imposable on accused then would not be death, but merely reclusion
perpetua for, assuming that Relanne's testimony in court would have confirmed what she
narrated in her sworn statement (Exhibit "C"), no circumstance then attended the commission of
the rape which could bring the crime under any provision of Article 335 which imposes a penalty
higher than reclusion perpetua or of reclusion perpetua to death. (People v. Manyuhod, Jr.)

WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN ASCENDANT

UNDER RA 8353 AND RA 7659

The trial court has thus held incorrectly in considering appellant, who is legally married to
Roxan's natural grandmother, as among those named in the enumeration. Appellant is merely a
step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. In
the recent case of People vs. Atop, 24 the Court rejected the application of the mandatory death
penalty to the rape of a 12-year old victim by the common-law husband of the girl's
grandmother. The Court said:

"It is a basic rule of statutory construction that penal statutes are to be liberally construed in
favor of the accused. Court's must not bring cases within the provision of a law which are not
clearly embraced by it. No act can be pronounced criminal which is not clearly made so by
statute; so, too, no person who is not clearly within the terms of a statute can be brought within
them. Any reasonable doubt must be resolved in favor of the accused."
(People v. Deleverio)

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS

SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO
SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA

Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule
that criminal statutes with a favorable effect upon the accused have, as to him, a retroactive
effect, the penalty imposable upon the accused should be reclusion perpetua and not life
imprisonment.
(People v. Latura)

JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY

Although its origins seem lost in obscurity, the imposition of death as punishment for violation of
law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed
to avenge themselves and their kin and that initially, the criminal law was used to compensate
for a wrong done to a private party or his family, not to punish in the name of the state.

The dawning of civilization brought with it both the increasing sensitization throughout the later
generations against past barbarity and the institutionalization of state power under the rule of
law. Today every man or woman is both an individual person with inherent human rights
recognized and protected by the state and a citizen with the duty to serve the common weal and
defend and preserve society.

One of the indispensable powers of the state is the power to secure society against threatened
and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that
define and punish illegal acts that may be committed by its own subjects, the executive
agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance
with these laws.

Although penologists, throughout history, have not stopped debating on the causes of criminal
behavior and the purposes of criminal punishment, our criminal laws have been perceived as
relatively stable and functional since the enforcement of the Revised Penal Code on January 1,
1932, this notwithstanding occasional opposition to the death penalty provisions therein. The
Revised Penal Code, as it was originally promulgated, provided for the death penalty in
specified crimes under specific circumstances. As early as 1886, though, capital punishment
had entered our legal system through the old Penal Code, which was a modified version of the
Spanish Penal Code of 1870. (People v. Echegaray)

WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT

"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136
U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve
torture or a lingering death, but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous, something
more than the mere extinguishment of life.'"

“as long as that penalty remains in the statute books, and as long as our criminal law provides
for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law
regardless of their private opinions," and this we have reiterated in the 1995 case of People v.
Veneracion. (People v. Echegaray)
DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED

A reading of Section 19 (1) of Article III will readily show that there is really nothing therein
which expressly declares the abolition of the death penalty. The provision merely says that the
death penalty shall not be imposed unless for compelling reasons involving heinous crimes the
Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion
perpetua. The language, while rather awkward, is still plain enough". (People v. Echegaray)

DEFINITION OF HEINOUS CRIMES

". . . the crimes punishable by death under this Act are heinous for being grievous, odious and
hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered society." (People v. Echegaray)

WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER

RA 7659

Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:

(1) Treason (Sec. 2);

(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the following four
circumstances: (a) the victim was detained for more than three days; (b) it was committed
simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to
kill him were made; and (d) if the victim is a minor, except when the accused is any of the
parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building
where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory
in the service of public utilities; (e) a building for the purpose of concealing or destroying
evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a
storehouse or factory of explosive materials located in an inhabited place; or regardless of what
is burned, if the arson is perpetrated by two or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a) the rape is committed with a
deadly weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted
or frustrated and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated
drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the
arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to
implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or
raped (Sec. 20).
(People v. Echegaray)

WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY

UNDER RA 7659

On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the
following crimes:

(1) Qualified bribery

"If any public officer is entrusted with law enforcement and he refrains from arresting or
prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or
death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the
offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death." (Sec. 4)

(2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured or subjected to dehumanizing acts

"The penalty shall be death where the kidnapping or detention was committed for the purpose of
ransom from the victim or any other person, even if none of the circumstances above-mentioned
were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subject to
torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)

(3) Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this Article, death
results, the mandatory penalty of death shall be imposed." (Sec. 10)

(4) Rape with the victim becoming insane, rape with homicide and qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty
shall be death.

xxx xxx xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent or the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation." (Sec. 11 )

(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the
victim is a minor or the victim dies

"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided
shall be imposed." (Sec. 13)

(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor
or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the
penalty [of death] shall be imposed in every case where a prohibited drug is administered,
delivered or sold to a minor who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person using the same in such
den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs
where the victim is a minor or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a regulated drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty [of death] herein
provided shall be imposed." (Sec. 14)

(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor
or the victim dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty
[of death] herein provided shall be imposed in every case where a regulated drug is
administered, delivered or sold to a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the same in such
den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15)

(9) Drug offenses if convicted are government officials, employees or officers including
members of police agencies and armed forces

"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13
of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous
Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are
government officials, employees or officers including members of police agencies and the
armed forces." (Sec. 19)

(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death
penalty if convicted are government officials, employees or officers
"Any such above government official, employee or officer who is found guilty of 'planting' any
dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A,
15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate
vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein
provided." (Sec. 19)

(11) In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating
circumstances.

The maximum penalty [of death] shall be imposed if the offense was committed by any person
who belongs to an organized/syndicated crime group.

An organized/syndicated crime group means a group of two or more persons collaborating,

confederating or mutually helping one another for purposes of gain in the commission of any
crime." (Sec. 23)
(People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659

Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be
imposed when (1) aggravating circumstances attend the commission of the crime as to make
operative the provision of the Revised Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission of the crime which indubitably
characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of
the death, albeit the imposable penalty is reclusion perpetua to death. (People v. Echegaray)

WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES

The death penalty is imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply dehumanized a person or criminal
acts with severely destructive effects on the national efforts to lift the masses from abject
poverty through organized governmental strategies based on a disciplined and honest citizenry,
and because they have so caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the safety of individuals and the
survival of government, they must be permanently prevented from doing so. At any rate, this
court has no doubts as to the innate heinousness of the crime of rape, as we have held in the
case of People v. Cristobal. (People v. Echegaray)

WHY RAPE IS A HEINOUS CRIME

"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice
and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to
which every person has a right. It causes grave damage that can mark the victim for life. It is
always an intrinsically evil act . . . an outrage upon decency and dignity that hurts not only the
victim but the society itself." (People v. Echegaray)

WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if

infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition
seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the
society all that appears harsh and suppressive. If we are to preserve the humane society we will
have to retain sufficient strength of character and will to do the unpleasant in order that
tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is
a . . . necessary, if limited factor in that maintenance of social tranquillity and ought to be
retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false
delicacy to reign over the necessity of social survival." (People v. Echegaray)
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE TO
ACCUSED IT SHOULD BE RETAINED

Appellant in this case was convicted and meted the penalty of life imprisonment and fine of
twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July
1990. RA 7659, which took effect on December 31/93, amended the provisions of RA 6425,
increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to
reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties
provided under the RPC and has a higher amount of fine which in accordance with ART 22 of
the same code should not be given retroactive effect. The court, therefore, finds and so holds
that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly
imposed by the trial court should be retained. (PP v Carreon, 12/9/97)

COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY OF

LAWS

It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the province of the Legislature which enacts them
and the Chief Executive who approves or vetoes them. The only function of the judiciary is to
interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the
guidance of the members of the judiciary we feel it incumbent upon us to state that while they as
citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may
recommend to the authority or department concerned, its amendment, modification, or repeal,
still, as long as said law is in force, they must apply it and give it effect as decreed by the law-
making body. (People v. Veneracion)

REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS

The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the
basis for determining the convict's eligibility for pardon or for the application of the three-fold rule
in the service of multiple penalties. (People v. Lucas)

ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER

CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING
CIRCUMSTANCE.

While the number of persons killed does not alter the characterization of the offense as robbery
with homicide, the multiplicity of the victims slain should have been appreciated as an
aggravating circumstance. This would preclude an anomalous situation where, from the
standpoint of the gravity of the offense, robbery with one killing would be treated in the same
way that robbery with multiple killings would be. (People V. Timple)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE 294 OF
THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE
APPLIED RETROACTIVELY; CASE AT BAR.

Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by
reclusion perpetua to death. In view, however, of the first paragraph of Section 19, Article III of
the 1987 Constitution, which provides that: "Sec. 19. (1) Excessive fines shall not be imposed,
nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua" (Emphasis
supplied) only the penalty of reclusion perpetua could be imposed by the trial court. Hence, the
attended aggravating circumstances in this case had no impact upon the determination of the
proper penalty by the trial court. By Republic Act No. 7659 (effective 31 December 1993),
Congress re-imposed the death penalty for certain heinous crimes, including robbery with
homicide and robbery with rape. By the same statute, Article 294 of the Revised Penal Code
was amended to read as follows: "Any person guilty of robbery with the use of violence against
or intimidation on any person shall suffer: 1. The penalty of reclusion perpetua to death, when
by reason or on occasion of the robbery, the crime of homicide shall have been committed, or
when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code, as amended by R.A. No. 7659,
however, cannot be applied retroactively in this case. To do so would be to subject the appellant
to the death penalty which could not have been constitutionally imposed by the court a quo
under the law in effect at the time of the commission of the offenses. (People v. Timple)

A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS

KIDNAPPING

The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations
constituting grave coercion, the elements of which were sufficiently proved by the prosecution.
Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules
on Criminal Procedure.
(People -vs- Astorga)

ELEMENTS OF GRAVE COERCION

Grave Coercion or coaccion grave has three elements:

a. That any person is prevented by another from doing something not prohibited by law, or
compelled to do something against his or her will, be it right or wrong;

b. That the prevention or compulsion is effected by violence, either by material force or such a
display of it as would produce intimidation and, consequently, control over the will of the
offended party; and

c. that the person who restrains the will and liberty of another has no right to do so or, in other
words, that the restraint is not made under authority of a law or in the exercise of any lawful
right.
(People -vs- Astorga)

ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF KIDNAPPING

Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not
adequately prove this element, the accused cannot be held liable for kidnapping. In the present
case, the prosecution merely proved that appellant forcibly dragged the victim toward a place
only he knew. There being no actual detention or confinement, the appellant may be convicted
only of grave coercion.

(People -vs- Astorga; GGR 110097, December 22, 1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20 THEREOF AS
AMENDED BY R.A. NO. 7659.

In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July 1994, this Court
ruled as follows: (1) Provisions of R.A. No. 7659 which are favorable to the accused shall be
given retroactive effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity
of the dangerous drug involved is less than the quantities stated in the first paragraph of Section
20 of R.A. No. 6425, the penalty to be imposed shall range from prision correccional to reclusion
temporal, and not reclusion perpetua. The reason is that there is an overlapping error, probably
through oversight in the drafting, in the provisions on the penalty of reclusion perpetua as shown
by its dual imposition, i.e., as the minimum of the penalty where the quantity of the dangerous
drugs involved is more than those specified in the first paragraph of the amended Section 20
and also as the maximum of the penalty where the quantity of the dangerous drugs involved is
less than those so specified in the first paragraph. (3) Considering that the aforesaid penalty of
prision correccional to reclusion temporal shall depend upon the quantity of the dangerous
drugs involved, each of the component penalties thereof — prision correccional, prision mayor,
and reclusion temporal — shall be considered as a principal imposable penalty depending on
the quantity, such that the quantity of the drugs enumerated in the second paragraph should
then be divided into three, with the resulting quotient, and double or treble the same, as the
bases for determining the appropriate component penalty. (4) The modifying circumstances in
the Revised Penal Code may be appreciated to determine the proper period of the
corresponding imposable penalty or even to effect its reduction by one or more degrees;
provided, however, that in no case should such graduation of penalties reduce the imposable
penalty lower than prision correccional. (5) In appropriate instances, the Indeterminate
Sentence Law shall be applied and considering that R.A. No. 7659 has unqualifiedly adopted
the penalties under the Revised Penal Code with their technical signification and effects, then
the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the
Revised Penal Code; hence, pursuant to Section 1 of the Indeterminate Sentence Law, the
indeterminate penalty which may be imposed shall be one whose maximum shall be within the
range of the imposable penalty and whose minimum shall be within the range of the penalty
next lower in degree to the imposable penalty. With the foregoing as our touchstones, and it
appearing that the quantity of the shabu recovered from the accused in this case is only 0.0958
gram, the imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as
further amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the
Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate
penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision
correccional as maximum.

WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION)

In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with
sidecar valued at P30,000.00. Since this value remains undisputed, we accept this amount for
the purpose of determining the imposable penalty. In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the
maximum period. Considering that the penalty for qualified theft is two degrees higher than that
provided for simple theft, the penalty of prision mayor in its minimum and medium periods must
be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified
theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed
in its maximum period. (PP -vs- Ricardo Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid,
Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza,
Accused. RICARDO DELA CRUZ alias Pawid, Accused-Appellant. G.R. No. 125936 Feb. 23,
2000 )

PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS

The bail bond that the accused previously posted can only be used during the 15-day period to
appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a)
of Rule 114 which provides that the bail "shall be effective upon approval and remain in force at
all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the
Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it."
This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old
rules which then provided that bail shall be effective and remain in force at all stages of the case
until its full determination, and thus even during the period of appeal.

Moreover, under the present rule, for the accused to continue his provisional liberty on the same
bail bond during the period to appeal, consent of the bondsman is necessary. From the record,
it appears that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on
January 06, 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the
same upon its expiration. Obtaining the consent of the bondsman was, thus, foreclosed. (
Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable
COURT OF APPEALS (Fourth Division and People of the Philippines, Respondents. G.R. No.
139599, Feb. 23, 2000)

WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.

We find, however, that the aggravating circumstance of abuse of superior strength attended the
killing. "To appreciate abuse of superior strength as an aggravating circumstance, what should
be considered is not that there were three, four or more assailants of one victim, but whether the
aggressors took advantage of their combined strength in order to consummate the offense. It is
therefore necessary to show that the attackers cooperated in such a way as to secure
advantage of their superiority in strength."

In this case, appellants and their companions purposely gathered together and armed
themselves to take advantage of their combined strength to ensure that Reynaldo Danao would
be able to kill the victim without any interference from other bystanders.

However, not having been alleged in the Information, abuse of superior strength can only be
considered as a generic aggravating circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ
and LEONARDO VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb. 15,
2000)

USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE

The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means
thereof. (PP -vs- THADEOS ENGUITO Defendant-Appellant. G.R. 128812, Feb. 28, 2000)

ELEMENTS OF EVIDENT PREMEDITATION

(1) The time when the offender determined to commit the crime; (2) an act manifestly indicating
that the offender had clung to his determination; and (3) sufficient lapse of time between the
determination and the execution to allow the offender to reflect on the consequences of his act.
(PP -vs- ROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000)

WHEN NIGHTTIME IS AGGRAVATING

Nighttime as an aggravating circumstance must have specially been sought to consummate the
crime, facilitate its success or prevent recognition of the felon. (PP -vs- CONSTANCIO MERINO
and ARNULFO SIERVO, Accused-Appellants. G.R. No. 132329, Dec. 17, 1999)

TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

There is treachery when the offender commits any of the crimes against the person employing
means, methods or forms in the execution thereof which tend directly and specifically to insure
its execution without risk to himself arising form the defense which the offended party might
make. As earlier mentioned, the deceased was already rendered completely helpless and
defenseless when he was stabbed by Pedro Lumacang. Although he was able to run a short
distance, he had absolutely no means of defending himself from the three brothers who were
armed with hunting knives, bent on finishing him off. The wounded victim had not even so much
as a stick or a stone to parry off their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying circumstance, abuse of superior
strength should not have been considered separately inasmuch as it is absorbed in treachery.
(PP -vs- PEDRO LUMACANG, PABLO LUMACANG and DOMINGO LUMACANG, Accused-
Appellants. G.R. No. 120283, Feb. 1, 2000)
WHY DWELLING IS AGGRAVATING

"The home is a sort of sacred place for its owner. He who goes to another's house to slander
him, hurt him or do him wrong, is more guilty than he who offends him elsewhere." (PP -vs-
JOSE & NESTOR BiñAS, Accused-Appellant. G.R. No. 121630, Dec. 8, 1999)

EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY

Moreover, Milyn Ruales also testified that the knife used by accused was hidden from view.
Thus, Isabel Ruales was not prepared for such a violent attack, especially considering that, at
the time, she was unarmed and was burdened with a large basket filled with about six kilos of
corn and dried fish hanging from her shoulders and thus, could not have possibly warded off the
blow or run away from her assailant. Although Milyn Ruales described the attack having been
frontal, this does not negate treachery since the essence of treachery is the suddenness and
unexpectedness of the attack, giving the victim no opportunity to repel it or offer any defense of
his person. Thus, we hold that the trial court correctly appreciated the qualifying circumstance of
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO", G.R. No.
126097, Feb. 8, 2000)

DATE OF EFFECTIVITY OF RA 7659, ETC.

Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the said law only applies
to crimes defined therein, including rape, which were committed after its effectivity. It cannot be
applied retroactively because, to do so, would go against the constitutional prohibition on ex
post facto laws. For this reason, in order for the death penalty to be imposable, it is incumbent
upon the prosecution to establish beyond a shadow of doubt that the case of the accused is
already covered by Republic Act No. 7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH
(a) makes criminal an act before the passage of the law and which was innocent when done,
and punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when committed;
(c) changes the punishment and inflicts a greater punishment than the law annexed to the crime
when committed;
(d) alters the legal rules of evidence, and authorizes conviction upon less or different testimony
than the law required at the time of the commission of the offense;
(e) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation
of a right for something which when done was lawful; and
(f) deprives person accused of a crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.
(PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

ILLEGAL POSSESSION OF FIREARMS

(REPUBLIC ACT NO. 8294)
SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is hereby further amended
to read as follows:

"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41,
.44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and
caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by
burst of two or three: Provided, however, That no other crime was committed by the person
arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed
as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.

"The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their residence in the course of their
employment.

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor."

SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further

amended to read as follows:

"SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives.

— The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not
less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall
unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle
grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,'
'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous
objects or causing injury or death to any person.

"When a person commits any of the crimes defined in the Revised Penal Code or special laws
with the use of the aforementioned explosives, detonation agents or incendiary devices, which
results in the death of any person or persons, the use of such explosives, detonation agents or
incendiary devices shall be considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of, or incident to, or in connection with the crime
of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as
an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat.

"The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the explosives owned by such firm, company, corporation or
entity, to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs."

SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is hereby further

amended to read as follows:

"SECTION 5. Tampering of Firearm's Serial Number. — The penalty of prision correccional

shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the
serial number of any firearm."

SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is hereby further

amended to read as follows:

"SECTION 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. —

The penalty of prision correccional shall be imposed upon any person who shall unlawfully
repack, alter or modify the composition of any lawfully manufactured explosives."

SECTION 5. Coverage of the Term Unlicensed Firearm. — The term unlicensed firearm shall
include:

1) firearms with expired license; or

2) unauthorized use of licensed firearm in the commission of the crime.

RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED

MAYBE CONVICTED
In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz:

a. the existence of the subject firearm; and

b. the fact that the accsused who owned or possessed it does not have the license or permit to
possess the same. (People v. Castillo, 325 scra 613)

The essence of the crime of illegal possession is the possession, whether actual or constructive,
of the subject firearm, without which there can be no conviction for illegal possession.

After possession is established by the prosecution, it would only be a matter of course to

determine whether the accused has a license to possess the firearm. (People v. Bansil, 304
scra 384)

Possession of any firearm becomes unlawful only if the necessary permit or license therefor is
not first obtained. The absence of license and legal authority constitutes an essential ingredient
of the offense of illegal possession of firearm and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise,
the negative fact of lack or absence of license constitutes an essential ingredient of the offense
which the prosecution has the duty not only to allege but also to prove beyond reasonable
doubt. (People v. Khor, 307 scra 295)

"To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as
amended, two (2) essential elements must be indubitably established, viz: (a) the existence of
the subject firearm or explosive which may be proved by the presentation, of the subject firearm
or explosive or by the testimony of witnesses who saw accused in possession of the same, and
(b) the negative fact that the accused had no license or permit to own or possess the firearm or
explosive which fact may be established by the testimony or certification of a representative of
the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the
subject firearm or explosive." (Del Rosario v. People, 05/31/01)

We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused's
lack of license or permit to carry or possess the firearm, ammunition or explosive as possession
by itself is not prohibited by law. (People v. Cortez, 324 scra 335, 344)

Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no
malice or intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a
conviction, however, there must be possession coupled with intent to possess (animus
possidendi) the firearm. (Supra)

PRESENT MEANING OF ILLEGAL

POSSESSION OF FIREARM

Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful
authority. The scope of the term has been expanded in Sec.5 of R.A. 8294.

Thus, the unauthorized use of a weapon which has been duly licensed in the name of its
owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants
may have been issued their respective licenses to possess firearms, their carrying of such
weapons outside their residences and their unauthorized use thereof in the killing of the victim
may be appreciated as an aggravating circumstance in imposing the proper penalty for murder.
(Pp. V. Molina; Gr 115835-36; July 22, 1998)

ILLEGAL POSSESSION OF FIREARM ONLY

SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.

Where murder or homicide was committed, the separate penalty for illegal possession shall no
longer be meted out since it becomes merely a special aggravating circumstance.

This statutory amendment may have been an offshoot of our remarks in Pp. V. Tac-an and Pp.
V. Quijada :

“Neither is the 2nd paragraph of Sec.1 meant to punish homicide or murder with death if either
crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a
qualifying circumstance and not as an offense. That could not have been the intention of the
lawmaker because the term “penalty” in the subject provision is obviously meant to be the
penalty for illegal possession of firearm and not the penalty for homicide or murder. We explicitly
stated in Tac-an :

There is no law which renders the use of an unlicensed firearm as an aggravating circumstance
in homicide or murder. Under an information charging homicide or murder, the fact that the
death weapon was an unlicensed firearm cannot be used to increase the penalty for the 2nd
offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the instrument used in destroying
human life or committing some other crime, is not included in the inventory of aggravating
circumstances set out in Article 14 of the Revised Penal Code.

A law may, of course, be enacted making use of an unlicensed firearm as a qualifying

circumstance.” (People v. Molina; GR 115835-36, July 22, 1998)

NEW PENALTY FOR LOW POWERED

FIREARM IN ILLEGAL POSSESSION
OF FIREARMS

Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and
approval on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new
law, the penalty for possession of any low powered firearm is only prision correccional in its
maximum period and a fine of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present penalty that may be imposed is
anywhere from two years, four months and one day to four years and two months of prision
correccional in its medium period, as minimum, up to anywhere from four years, two moths and
one day to six years of prision correccional in its maximum period, as maximum.. The court in
addition, may impose a fine consistent with the principle that an appeal in a criminal case throws
the whole case open for review by the appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)

ACTS PUNISHABLE:

1. “upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower,
part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition”

2. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.”

3. "If the violation of this Section is in furtherance of or incident to, or in connection with the
crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup
d'etat.”

4. "The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their residence in the course of their
employment.”

5. “The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor”

6. “Any person who shall unlawfully tamper, change, deface or erase the serial number of any
firearm”.

7. “Any person who shall unlawfully repack, alter or modify the composition of any lawfully
manufactured explosives”.

MALUM PROHIBITUM

The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in
which case good faith and absence of criminal intent are not valid defenses. (People v De
Gracia, 7/6/94)

1. Manufacture, deal in, acquire, dispose or possess. It is these acts relative to firearms. The
obvious underlying principle is the undesirability of the proliferation of firearms and their free
traffic and possession. This is clear from the first two “whereas” clause of P.D. 1866. It is then
clear that illegal possession, etc. is a malum prohibitum. For purpose of simplicity we will
confine our analysis to “possession”, although what we will discuss hereunder applies to
manufacture, dealing in, acquiring or disposing as well.

1.1. it is not correct to say without qualification that “intent” is immaterial. Intent as to possession
is immaterial. Intention to possess is material. Whatever the purpose of the possession may be
is consistently immaterial. That one was in possession of an unlicensed firearms merely for
one’s protection without intending harm on anybody is a fruitless defense. It is the clear doctrine
of such cases as People v. de la Rosa, 284 SCRA 158 that “mere possession without criminal
intent is sufficient on which to render a judgment of conviction”.
1.2. HOWEVER, possession must be established beyond reasonable doubt, and in view of the
special meaning that “possession” has in criminal law, discovery by police, officers alone of a
firearmin the baggage or gloves compartment of a car will not necessarily be sufficient to
sustain a conviction of the car owner or driver. Essential to the legal concept of “possession” in
illegal possession cases is animus possidendio. (People v. de la Rosa, supra; People v.
Sayang, 110 Phil 565).

1.3. How is animus possidendi established? There must be proved either by direct or
circumstantial evidence the “intent” of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with
possession and other surrounding circumstances. (People v. de la Rosa) when it is established
that the accused purchased the weapon in question, a good case for animus possidendi is
made.
b.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under
the apparent control and power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the “gravamen” for
the offense of violation of P.D.1866 is the possession of firearm without the necessary permit
and/or license. “The crime is immediately consummated upon mere possession of a firearm
devoid of legal authority, since it is assumed that the same is possed with “animus possidendi”
Does it then follow that everyone found with the firearm is in “possession” thereof for the
purpose of prosecution and conviction under P.D. 1866 as amended by R.A. 8294? The results
would be patently absurd.

h. A person who finds a firearms and takes it with him to the police station for the purpose of
turning it over to the police should be commended, rather than prosecuted.
ii. A person who is stopped at a check-point at which it is discovered that there is firearms –
placed either advertently or inadvertently in his baggage compartment without his knowledge -
cannot be held liable for illegal possession.
iii. If the offender was in possession of an unlicensed only on the occasion of the shooting for
transitory purpose and for the short moment in connection with the shooting, the Supre Court
held in People v. Macasling, 237 SCRA 299 that there was no evidence of “animus possidendi”.
iv. It then appears to be the more reasonable position that where a person is apprehended with
an unlicensed weapon, animus possidendi will be disputably presumed. The accused may
controvert the presumption of animus possidendi. To convict, the court needs proof beyond
reasonable doubt of animus possidendi.

1.4 What the prosecution must prove for it to succeed under the law is two-fold: first, the
existence of the firearm; second, the absence of a license or a permit to possess. (People v.
Rugay, 291 SCRA 692)

a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence
be presented. It is very well possible that the accused effectively conceals the weapon before
his apprehension. Incontrovertible testimonial evidence may successfully established the
existence of the firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),

b.) An interesting question arises. The present law makes penalties depend on the caliberof the
firearm, i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878
(January 18, 1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was high-
powered because it was capable of ejecting more than one bullet in one squeeze. If it is the
criterion, then logically, caliber can be established by teetimony establishing the manner in
which the firearm ejected bullets. The distinguishing features of particularly firearms,
furthermore, that may be recited by keen observer sworn in a s witness my identify the firearm
as well as it caliber. This can be established by a judicious combination of the testimonial
evidence of observers abd experts.

c.) A firearm is unlicensed when a certification from the “Firearms and Explosives Unit” attests
that no license has been issued. There will still be a case for illegal possession if one holding a
firearm duly licensed carries it outside his residence when he has no permit to carry it outside
his residence (Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed
firearm by one not licensed or permitted to use it would still be illegal possession.

d.) A security guard employed by a security agency and issued a firearm by the agency has the
right to assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm
is not licensed, there is no animus possidendi of an unlicensed firearm. (Cuenco v. People, 33
SCRA 522). The case is obviously different, however, if a police officer leaves with a cousin for
safekeeping his firearm. The cousin knows fully well that he has no permit or authority to keep
the firearm. If he accepts to do this favor, he is indictable. (People v. Sayong, 110 Phil 565)

2. Provided no other crime is committed. It is this proviso in the amendatory law that has visited
countless woes on numerous judges and has occasioned not easily reconcilable decisions by
the Supreme Court .it is obviously a case of not only poor but miserable draftsmanship!

2.1 It is clear that where there is no other offense except the unlawful possession of a firearm,
the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its
maximum period for low-powered firearms, and prision mayor in its maximum periods for high-
powered firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person
may be convicted of simple illegal possession if the illegal possession is proved and the
frustrated murder and murder case – involving the use of the illegal possession – has not been
sufficiently proved. People v. Avecilla, G.R. 117033 (February 15, 2001) teaches that “the crime
of illegal possession of firearms, in its simple form, is committed any of the crimes of murder,
homicide, rebellion, insurrection, sedition or attempted coup d’etat”.

2.2. It is also clear that where either homicide or murder is committed with the use of an
unlicensed firearm, such use shall constitute an “aggravating circumstances”. It is well known
that R.A. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who
was then serving sentence for illegal possession. It was therefore meant to be more benevolent,
as it is in the penalties it impose. Senator Revilla, however, could not see far enough (and
regrettably neither could other legislators) and the effect at least in the case of murder is that it
may send the accused to the lethal injection chamber where otherwise he would not be meted
out the death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the Chief Justice
himself as ponente illustrates the complication the law has introduced. In this case, the accused
had been charged with two offenses: robbery with homicide and illegal possession of firearms.
During the pendency of the case, the amended law came into force. The court then held that
insofar as R.A. 8294 was favorable to the accused in that it spared him from separate
prosecution for illegal possession, the charge for illegal possession was dropped. Insofar,
however, as it increased the penalty for robbery with homicide, the aggravating circumstances
of the use of unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised
Rules of Criminal Procedure will apply: As an aggravating circumstances, the use of the
unlicensed weapon must be alleged in the information.

2.3 When the violation of the law penalizing unlicensed weapon is “in furtherance of or incident
to, or in connection with the crimes of rebellion, insurrection, sedition or attempted coup d’etat”
then the violation is absorbed in the main offense. (R.A. 8294, Section 1).

2.4 What happens when an unlicensed weapon is used in the commission of other offenses
other that homicide, murder, rebellion, insurrection, sedition or attempted coup d’ etata? People
v. Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the
distinctively clear language of Justice Panganiban: “The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that “no other crime was committed
by the person arrested’. If the intention of the law in the second paragraph were to refer only to
homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.” In brief, where the accused commits a
crime other than those enumerated with the use of an unlicensed weapon, no separate charge
for such use will be brought against him. Consistent with this is the disposition by the Supreme
court decreed: “Accordingly, all pending cases for illegal possession of firearms should be
dismissed if they arose from the commission” of crimes other than those indicated in Section 1
and 3 of R.A. 8294.

2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends
the commission of a crime, no matter how trivial, the case of illegal possession recedes into
judicial irrelevance. The matter is definitely one that calls for a curative statute and the Supreme
Court has referred the matter to the Congress for another look. One moral lesson can be
learned: Laws passed as favor to one’s friend is a poor laws!
OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one’s control and
management.

INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL

A distinction should be made between criminal intent and intent to possess. While mere
possession without criminal intent is sufficient to convict a person for illegal possession of
firearms, it must still be shows that there was animus possidendi or an intent to possess on the
part of the accused.

There is no evidence of animus possedendi if the offender was in possession of an unlicensed

firearm only on the occasion of the shooting for a transitory purpose and for the short moment in
connection with the shooting.

Lack of evidence is an essential element of the crime and that the same must be alleged in the
Information and duly proved.
(People -vs- Macasling, 237 SCRA 299)

Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may
be convicted of possession of an unlicensed firearm even if he is not the owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)

Even if the gun is "paltik," there is a need to secure license for the gun, and if found without any
license therefor, the offender is liable for violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)

If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct
assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating
circumstances nor a separate offense. Since the law uses the word Homicide or Murder,
possession of an unlicensed firearm is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)

Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime,
Republic Act 8294 took effect, the accused should be convicted only of Murder. The use of
unlicensed firearm should not be considered as aggravating because the Court will have to
impose the death penalty which cannot be allowed because, at the time of the commission of
the offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion,
Chief Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of
violation of PD 1866 should continue and if the accused is found guilty, he should be meted the
death penalty under Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)

Where the prosecution failed to adduce the gun in evidence coupled with the fact that per
Certification of the FEU, " no available information regarding the license for the gun and the
inconsistency in the evidence of the prosecution, the latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Mere possession without criminal intent is sufficient on which to render a judgment of conviction
for violation of PD 1866, as amended. However, there must be animus possedendi or intent to
possess without any license or permit. Good faith is not a defense. Neither is lack of criminal
intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)

Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence,

stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra)

Possession includes actual physical possession and constructive possession. The animus can
be determined from the overt acts of the accused prior to or coetaneous with and other
surrounding circumstances of such possession. Hence, where the accused found a gun and
was on his way to deliver the gun to the police authority and was arrested, in the process, there
is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)

Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the
Prosecution is burdened to prove that the accused has no license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)

For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove:
(a) the existence of the subject firearm; (b) the fact that the accused who owned or possessed
the firearm does not have the corresponding license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)

Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than
six (6) years, and a fine of P15,000.00, he should be ordered to undergo subsidiary
imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)

In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and 14, in relation to
Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the
Revised Penal Code may now be applied for violation of PD 1866, as amended and Rep[ublic
Act 6425, as amended.

Even if a person is licensed to possess a firearms but brings out firearm outside of his residence
without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as
amended. A Mission Order cannot take the place of a license. A Mission Order can only be
issued to one licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)

If the accused borrowed a gun from another who is licensed to possess firearm, may the former
be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and
lends it to another, the latter is liable for violation of PD 1866, as amended. A license to possess
a firearm and a permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)

Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of
possession of an unlicensed firearm as long as proof was adduced that the acused was in
possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)

NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose
there is no testimony as to the caliber of the gun?

Where a security guard was given by his employer, a security agency, a firearm, and the
accused assumed that the employer secured the license for the firearm but that it turned out
that the employer failed to get any license, the security guard is not criminally liable. The
security guard has the right to assume that the security agency secured the license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)

If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused
found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To
exculpate himself, the accused must prove absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)

A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised
to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the
unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite
possession by B of the unlicensed firearm because there was no way to determine when A
could pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)

If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a

special aggravating circumstance which must be alleged in the Information and cannot be offset
by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22,
1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998)

The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs-
Jesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had
been overtaken by Republic Act 8294.

Under the amendment, the death penalty may now be imposed if the accused is convicted of
Murder with the use of licensed or unlicensed firearms.

As long as the accused is proved to have been in possession of the unlicensed firearm even if
the firearm is not adduced in evidence, conviction under the law is proper.
(People -vs- Felicisimo Narvasa, supra)

Republic Act 8294 took effect on July 6, 1997.

If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act
8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither
should the possession of an unlicensed firearm be considered as an aggravating circumstance
as it will be less favorable to the accused. If the accused used a sumpak to kill the victim, the
prosecution must prove that he had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)

Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused was convicted of
Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took
effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide
and violation of PD 1866, as amended, and applied the penalty for the crimes under the
amendment.

In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En Banc declared
that where the accused was convicted of said crio,es, by the Trial Court but that during the
pendency of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused
should only be convicted of Murder with the use of an unlicensed firearm as mere a special
aggravating circumstance.

Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)

A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting
two or three bullets in one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)

It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to
apply. It is not enough that there is evidence of the existence of the gun which can be
established either by testimony or presentation of the gun itself.

Possession of an unlicensed firearm and used in killing is a special aggravating circumstance.

(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)

The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369,
February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic
aggravating circumstance is no longer true.

Possession under the law may either be actual physical possession or constructive possession.
However, although the crime under PD 1866, as amended, is malum prohibitum, however, there
must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the
fact that an unlicensed firearm is under the apparent control and power of the accused.
however, animus possidendi may be contradicted if a person in possession of an unlicensed
firearm does not assert a right thereto.

If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is
not punishable under PD 1866. However, the law does not provide for a fixed period of time for
one to be deemed in "possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233
SCRA 174). Each factual milieu must be considered.

IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS)

P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6,
1997 by Republic Act 8264. Aside from lowering the penalty for said crime, R.A. 8294 also
provided that if homicide or murder is committed with the use of an unlicensed firearm, such use
shall be considered as a special aggravating circumstance. This amendment has two (2)
implications: first, the use of an unlicensed firearm in the commission of homicide or murder
shall not be treated as a separate offense, but merely as a special aggravating circumstance;
second, as only a single crime (homicide or murder with the aggravating circumstance of illegal
possession of firearm) is committed under the law, only one penalty shall be imposed on the
accused.

Prescinding therefrom, and considering that the provisions of the amendatory law are favorable
to herein appellant, the new law should be retroactively applied in the case at bar. It was thus
error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and
Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of
the case, the crime for which the appellant may be charged is homicide, aggravated by illegal
possession of firearm, the correct denomination for the crime, and not illegal possession of
firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which
aggravates the crime of homicide under the amendatory law.

EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS NOT

SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM

Hence, in the case at bar, although the appellant himself admitted that he had no license for the
gun recovered from his possession, his admission will not relieve the prosecution of its duty to
establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun.
In People vs. Solayao, we expounded on this doctrine, thus:

"x x x by its very nature, an admission is the mere acknowledgement of a fact or of

circumstances from which guilt may be inferred, tending to incriminate the speaker, but not
sufficient of itself to establish his guilt." In other words, it is a statement by defendant of fact or
facts pertinent to issues pending, in connection with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to authorize conviction. From the above principles,
this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the
commission of the crime charged.

"Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of
Rule 129 of the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings
in the same case does not require proof.

"Not being a judicial admission, said statement by accused-appellant does not prove beyond
reasonable doubt the second element of illegal possession of firearm. It does not even establish
a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of
the fact of absence or lack of a license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y
LUMAYRO, G.R. No. 131592-93, Feb. 15, 2000)

ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS

To convict an accused for illegal possession of firearms and explosive under P.D. 1866 as
amended, two (2) essential elements must be indubitably established, viz: (a) the existence of
the subject firearm or explosive which may be proved by the presentation of the subject firearm
or explosive or by the testimony of witnesses who saw accused in possession of the same, and
(b) the negative fact that the accused had no license or permit to own or possess the firearm or
explosive which fact may be established by the testimony or certification of a representative of
the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the
subject firearm or explosive.
In the case at bar, the prosecution failed to prove the second element of the crime, i.e., the lack
of license or permit of appellant Cortez to possess the hand grenade. Although the hand
grenade seized by PO2 Santos from appellant was presented in court, the records bear that
PO2 Santos did not submit the grenade to the PNP Firearms and Explosives Unit for
verification. This explains why no certification or testimony was adduced by the prosecution at
the trial to prove that appellant Cortez was not licensed to possess the explosive. The failure of
the prosecution to adduce this fact is fatal to its cause. We stress that the essence of the crime
penalized under P.D. 1866 is primarily the accused's lack of license or permit to carry or
possess the firearm, ammunition or explosive as possession by itself is not prohibited by law.

MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?

In the case of an explosive, a permit or license to possess it is usually granted to mining
corporations, military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y
NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000)

UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS

AND FOR HOMICIDE IS NOT ALLOWED
With respect to the conviction of accused-appellant for illegal possession of firearms under P.D.
No. 1866, it was held in the case of People vs. Molina and reiterated in the recent case of
People vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use
of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession
of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No.
8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as
an aggravating circumstance in the murder or homicide and no longer as a separate offense.
Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no
crime is committed. In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special
aggravating circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No. 123918, Dec.
9, 1999)
Elmer Brabante at 10:05 PM

1 comment:
1.
Roseller Villagonzalo BucogDecember 13, 2009 at 5:42 PM

DURA LEX SED LEX!!!

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Elmer Brabante
Student of law, professor on-leave, arm-chair social activist, culture voyeur, oragon.
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