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11. PARDON - Person, who was pardoned for the crime punishable by reclusion
perpetua, cannot run in the Senatorial race if the terms of the pardon has not
expressly restored his right to hold public office or remitted the accessory penalty of
perpetual absolute disqualification. Under Article 36 of the Revised Penal Code, a
pardon shall not work the restoration of the right to hold public office unless such right
be expressly restored by the terms of the pardon. Under Article 41, the penalty of
reclusion perpetua shall carry with it perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon (2015 Bar Exam).
12. PROBATION - Under Section 9 of PD No. 968, the benefits of the probation
shall not extend to those who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than 1 month and 1 day and/or a fine
of not less than P200. But RA No. 10707, which was approved on November 26,
2015, has amended PD No. 968 by increasing the penalty for the offense under
previous conviction, which will constitute a bar to probation for the offense under the
present conviction. Under PD No. 968 as amended by RA No. 10707, the benefits of
the probation shall not extend to those who have previously been convicted by final
judgment of an offense punished by imprisonment of more than 6 months and 1 day
and/or a fine of more than P1,000.However, even if the penalty for the offense under
previous conviction is lesser than that as stated above, one cannot avail of probation
for the offense under present conviction if he already availed of the benefit of
probation for the previous offense.
Under the original version of PD No. 968, alarm and scandal and direct assault
were probationable since the penalties prescribed for these crimes are not more than 6
years of imprisonment. However, on October 5, 1985, PD 1990 had amended Section 9
of PD No. 968 by making crimes against public disorder non-probationable. Hence,
the benefits of PD No. 968 as amended by PD 1990 could not be extended to those
convicted of direct assault (2012 Bar Examination) and alarm and scandal (2013 Bar
Examination) because these are crimes against public disorder. However, RA No.
10707, which was approved on November 26, 2015, has amended PD No. 968 by
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deleting crime against public disorder in Section 9 thereof. In sum, under the present
law on probation, alarm and scandal and direct assault are now probationable.
In Colinares vs. People, G.R. No. 182748, December 13, 2011 - The accused,
who was convicted by the lower court of a non-probationable offense of frustrated
homicide, but on appeal was found guilty of a probationable offense of attempted
homicide, may apply for probation upon remand of the case to the RTC because of
the following reasons: (1) The Probation Law never intended to deny an accused his
right to probation through no fault of his; (2) If the accused will not be allowed to
apply for probation, he will be made to pay for the trial court’s erroneous judgment;
(3) While it is true that probation is a mere privilege, the accused has the right to
apply for that privilege; (4) Under the law, appealing from judgment of conviction is a
waiver right to appeal. In this case, the accused did not appeal from the judgment of
a conviction for attempted homicide rendered by the appellate court.
In Villareal vs. People, G.R. No. 151258, December 1, 2014, accused was
convicted of homicide, a non-probationable crime, by the trial court. However, the SC
found them liable for reckless imprudence resulting in homicide, which is a
probationable crime, because of lack of dolo. They can still apply for probation. The
SC reaffirmed the Colinares principle.
RA No. 10707, which was approved on November 26, 2015, has adopted the
Colinares doctrine. Under Section 4 of PD 968 as amended by RA No. 10707, when a
judgment of conviction imposing a non-probationable penalty is appealed or reviewed,
and such judgment is modified through the imposition of a probationable penalty, the
defendant shall be allowed to apply for probation based on the modified decision
before such decision becomes final. This notwithstanding, the accused shall lose the
benefit of probation should he seek a review of the modified decision which already
imposes a probationable penalty.
13. Under the Spanish Penal Code, the modes of committing illegal detention
are "Secuestrare" and "Encerrare". "Secuestrare" means sequestration or
imprisonment. "Encerrare" includes not only the imprisonment of a person but also
the deprivation of his liberty in whatever form and for whatever length of time (People
vs. Baldago, G.R. No. 128106-07, January 24, 2003). There is deprivation of liberty if
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the victim was left in a place from which she did not know her way back home (People
vs. Jacalney, GR No. 168552, October 03, 2011)even if she had the freedom to roam
around the place of detention. For under such a situation, the child’s freedom remains
at the mercy and control of the abductor (People vs. Baluya, GR No. 181822, April 13,
2011).
14. THREATS - What is the difference among grave threats, light threats and
other light threats? In grave threats, the wrong threatened amounts to a crime which
may or may not be accompanied by a condition. In light threats, the wrong threatened
does not amount to a crime but is always accompanied by a condition. In other light
threats, the wrong threatened does not amount to a crime and there is no condition
(Calauag vs. People, (G. R. No. 171511, March 4, 2009).
15. BLACKMAIL - Blackmailing may constitute: (1) Light threats under Article
283; (2) Threatening to publish, or offering to prevent the publication of, a libel for
compensation under Article 356; and (3) robbery with intimidation against person.
Example: X, DENR officer, threatened to confiscate the hot logs from complainant and
prosecute it for illegal logging unless the latter will give her P100,000. Complainant
gave X the amount demanded. The crime committed is robbery with intimidation
(extortion). In robbery with intimidation of persons, the intimidation consists in
causing or creating fear in the mind of a person or in bringing in a sense of mental
distress in view of a risk or evil that may be impending, real or imagined. Such fear of
injury to person or property must continue to operate in the mind of the victim at the
time of the delivery of the money. In this case, the P100,000.00 "grease money" was
taken by X from complainant through intimidation. By using her position as the DENR
officer, X succeeded in coercing the complainants to choose between two alternatives:
to part with their money, or suffer the burden and humiliation of prosecution and
confiscation of the logs (Sazon vs. Sandiganbayan, G.R. No. 150873, February 10,
2009).
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liable for this crime. What is important is legal obligation to disclose the truth. In
Manansala vs. People, G.R. No. 215424, December 09, 2015, the accused was held
liable for falsification of document involving a petty cash replenishment report of a
private company because he has a legal obligation to disclose the truth of the facts
narrated by him.
In Article 315 of the Revised Penal Code, the damage which is an element of
estafa must be capable of pecuniary estimation. In Article 172, the element of damage
is falsification of private document is not required to be capable of pecuniary
estimation. The Spanish text of this provision uses the word “perjuicio” (prejudice).
Thus, falsification of private document, which prejudices a third person, is a felony. In
Manasala case, the offended party was dismissed from service because of the false
report that he made cash advances from the company without liquidating on time. The
accused was convicted of falsification of private document since the offended party
was prejudice by such falsification.
Under Article 48 of the RPC, when a single act constitutes two or more crimes,
a complex crime is committed for which only one penalty is imposed. Complex crimes
under Article 48 refer to either (1) an act which constitutes two or more grave or less
grave offenses; or (2) an offense which is a necessary means for committing
another.[17] The phrase "necessary means" in Article 48 does not mean indispensable;
otherwise, the offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient thereof. For instance,
the crime of simple estafa is ordinarily committed in the manner defined under the
RPC; but if the accused resorts to falsification merely to facilitate and insure the
commission of estafa, then he is guilty of the complex crime of estafa through
falsification (David vs. People, G.R. No. 208320, August 19, 2015).
In this case, it was duly proven during the trial that petitioner falsified several
BOC Form No. 38-A, a commercial document, in order to facilitate and insure the
commission of estafa. BOC Form No. 38-A is a commercial document used by
authorized collecting banks, such as Land Bank, as official receipt for the payment of
additional or deficiency customs taxes and duties. The falsification of the BOC forms,
which are commercial documents, was a necessary means to commit estafa (David vs.
People, G.R. No. 208320, August 19, 2015).
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The grant of loans through the "vale" system is a clear case of an accountable
officer consenting to the improper or unauthorized use of public funds by other
persons, which is punishable by the law. To tolerate such practice is to give a license
to every disbursing officer to conduct a lending operation with the use of public funds.
There is no law or regulation allowing accountable officers to extend loans to anyone
against "vales" or chits given in exchange by the borrowers. On the other hand, the the
Commission on Audit time and again, through repeated office memoranda and rulings
had warned against the acceptance of "vales" or chits by any disbursing officer
because such transactions are really forms of loans (Meneses vs. Sandiganbayan, G.R.
No. 100625 May 20, 1994).
Accused chose to exercise the right to protect the environment and to share in
this responsibility by exercising his authority as municipal mayor––an act which was
executed with the cooperation of non-governmental organizations, stakeholders, and
concerned citizens. His acts may be invalid but it does necessarily mean that such
mistakes automatically justify his conviction.
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The DENR is not the sole government agency vested with the authority to issue
permits relevant to the transportation of salvaged forest products, considering that,
pursuant to the general welfare clause, LGUs may also exercise such authority.
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municipality. That portion of the general fund was not considered appropriated since
it had not been earmarked by law or ordinance for a specific expenditure. Here, there
is no allegation in the informations that the P2 million and P6 million grants to
COCOFED had been earmarked for some specific expenditures.
What is more, the informations do not allege that the subject P2 million and P6
million were applied to a public use other than that for which such sums had been
appropriated. Quite the contrary, those informations allege that those sums were
unlawfully donated to “a private entity,” not applied to some public use. Clearly, the
constitutional right of the accused to be informed of the crimes with which they are
charged would be violated if they are tried for technical malversation under criminal
informations for violation of Section 3(e) of R.A. 3019 filed against them.
24. PARRICIDE - Parricide is committed when: (1) a person is killed; (2) the
deceased is killed by the accused; and (3) the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate other ascendant or other descendant,
or the legitimate spouse of the accused. The key element in Parricide - other than the
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fact of killing - is the relationship of the offender to the victim (People vs. Guting, G.R.
No. 205412, September 09, 2015).
In parricide, if the victim is his father, mother, or child, the relationship can
either be legitimate or illegitimate; if the victim is the spouse, other ascendant such as
grandparent or other descendant such as grandchild, the relationship must be
legitimate (People vs. Gamez, GR No. 202847, October 23, 2013).
25. Excessive Chastisement - “X” tied his son to a coconut tree and, there
after hit on his right eye and right leg. As a consequence, his son sustained injuries
that would heal in one week upon medication. Is “X” liable for slight physical injuries
despite the fact that his intention in beating his son is merely to discipline him? Yes.
“X” cannot evade criminal culpability by the circumstance that he merely intended to
discipline his son (People vs. Sales, G.R. No. 177218, October 3, 2011).
27. STAGES OF RAPE – Touching of either labia majora or labia minora of the
pudendum by an erect penis capable of penetration consummates the crime (People
vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No.
168932, October 19, 2011). Touching the labia by instrument or object (such as
tongue or finger) also consummates the crime of rape through sexual assault (People
vs. Bonaagua, GR No. 188897, June 6, 2011). If there is no touching of the labia, the
crime is either attempted rape or acts of lasciviousness depending upon the intent the
offender. If the intention is to have sexual intercourse, the crime is attempted rape;
otherwise, the crime is acts of lasciviousness.
Undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or
touching her vagina by the hand of the accused (People vs. Banzuela, G.R. No.
202060, December 11, 2013) or rubbing his penis on the mons pubis of the
pudendum (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely
acts of lasciviousness because intent to have sexual intercourse is not clearly shown.
To be held liable of attempted rape, it must be shown that the erectile penis is
in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014) or
the offender actually commenced to force his penis into the victim's sexual organ
(People vs. Banzuela, supra). Touching her genitalia with his hands and mashing her
breasts are "susceptible of double interpretation." These circumstances may show that
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the intention of the accused is either to commit rape or simple seduction (or acts of
lasciviousness). Since intent to have sexual intercourse is not clear, accused could not
be held liable for attempted rape. Hence, he is only liable for acts of lasciviousness
(Cruz vs. People, supra; People vs. Lamahang).
In People vs. Nuyok, G.R. No. 195424, June 15, 2015, the commission of rape
can be established by circumstantial evidence even if the victim, being the sole
witness, was rendered unconscious during its commission. Accused slapped victim
and punched her in the stomach. She was rendered unconscious. When she regained
consciousness, she found blood in her panties, and felt pain in her vagina. Accused
was convicted of rape.
For there to be an attempted rape, the accused must have commenced the act
of penetrating his sexual organ to the vagina of the victim but for some cause or
accident other than his own spontaneous desistance, the penetration, however, slight,
is not completed (People vs. Bandril, G.R. No. 212205, July 06, 2015).
29. CHILD ABUSE - Under Section 10 (a) of RA No. 7610, child abuse or
cruelty is committed by any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions prejudicial to the child’s
development including those covered by Article 59 of PD No. 603 but not covered by
the RPC.
Under Section 3 (b), "child abuse" refers to the maltreatment, whether habitual
or not, of the child which includes any of the following: (1) Psychological and physical
abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) Any act by
deeds or words which debases, degrades or demeans the intrinsic worth and dignity of
a child as a human being; (3) Unreasonable deprivation of his basic needs for survival,
such as food and shelter; or (4) Failure to immediately give medical treatment to an
injured child resulting in serious impairment of his growth and development or in his
permanent incapacity or death.
Section 10 (a) punishes not only those enumerated under Article 59 of PD No.
603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for conditions prejudicial to the child's
development. We stress that Section 10 refers to acts of child abuse other than child
prostitution and other sexual abuse under Section 5, attempt to commit child
prostitution under Section 6, child trafficking under Section 7, attempt to commit
child trafficking under Section 8, and obscene publications and indecent shows under
Section 9 (People vs. Rayon, G.R. No. 194236, January 30, 2013).
In Bongalon vs. People, G.R. No. 169533, March 20, 2013 - Accused saw the
victim and his companions hurting his minor daughters. Angered, accused struck
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minor-victim at the back with his hand and slapped his face. Since the accused
committed the act at the spur of the moment, they are perpetrated without intent to
debase his "intrinsic worth and dignity" as a human being, or to humiliate or
embarrass him. Without such intent, the crime committed is not child abuse under
RA 7610 but merely slight physical injuries.
In Rosaldes vs. People, G.R. No. 173988, October 08, 2014 - Although the
accused, as a schoolteacher, could duly discipline her minor student, her infliction of
the physical injuries on him was unnecessary, violent and excessive. The boy even
fainted from the violence suffered at her hands. She could not justifiably claim that
she acted only for the sake of disciplining him. Her physical maltreatment of him was
precisely prohibited by no less than the Family Code, which has expressly banned the
infliction of corporal punishment by a school administrator, teacher or individual
engaged in child care exercising special parental authority. Accused was convicted of
child abuse under Section 10 (a) of RA No. 7610.
The Family Code has expressly banned the infliction of corporal punishment by
a school administrator, teacher or individual engaged in child care exercising special
parental authority. A schoolteacher in employing unnecessary violence on her minor
student, who even fainted from the violence suffered at her hands, is liable for child
abuse under Section 10 of RA No. 7610 (Rosaldes vs. People, G.R. No. 173988,
October 08, 2014).Accused saw the victim and his companions hurting his minor
daughters. Angered, accused struck minor-victim at the back with his hand and
slapped his face. Since the accused committed the act at the spur of the moment, they
are perpetrated without intent to debase his "intrinsic worth and dignity" as a human
being, or to humiliate or embarrass him. Without such intent, the crime committed is
not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs.
People, G.R. No. 169533, March 20, 2013).
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Ortega, G.R. No. 186235, January 25, 2012; People vs. Broca, GR No. 201447,
January 09, 2013 People vs. Candellada, G.R. No. 189293, July 10, 2013, ; People vs.
Osma, G.R. No. 187734, August 29, 2012).
Person Deprived Of Reason – The term statutory rape should only be confined
to situations where the victim of rape is a person less than 12 years of age. If the
victim of rape is a person with mental abnormality, deficiency, or retardation, the
crime committed is simple rape committed against a person "deprived of reason"
(People vs. Dalan, G.R. No. 203086, June 11, 2014). In rape, the phrase "deprived of
reason" refers to mental abnormality, deficiency or retardation, which includes (a) idiot
(equivalent to two-year old child); (b) imbecile (seven-year old child); (c) moron or
feebleminded (twelve-year old child) and (d) borderline intelligence. A person is guilty of
rape when he had sexual intercourse with a female who was suffering from a
"borderline mental deficiency (People vs. Butiong, G.R. No. 168932, October 19, 2011;
G.R. No. 140209, December 27, 2002, People vs. Bayrante, G.R. No. 188978, June 13,
2012);
Demented Person - The term demented refers to a person who has dementia
(schizophrenia) or insanity. On the other hand, the phrase deprived of reason includes
those suffering from mental retardation. Accused was charged in the Information with
rape of a demented person. Evidence however shows that the victim is not demented
but mentally retarded. Mistake in the information will not exonerate the accused he
failed to raise this as an objection (People vs. Ventura, Sr. GR. No. 205230, March 12,
2014) or there is an allegation in the information that his mental age is below 7 years
old (People vs. Caoile, GR No. 203041, June 05, 2013,).
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Marital consent – Husband can be held liable for marital rape. Article 266-A of
RPC uses the term “man” in defining rape. Rape can be committed without regard to
the rapist’s legal relationship with his victim. Under Article 266-C of RPC as amended
by RA No. 8353, in case it is the legal husband who is the offender, the subsequent
forgiveness by the wife as the offended party shall extinguish the criminal action or the
penalty. RA No. 8353 has eradicated the archaic notion that marital rape cannot exist
because a husband has absolute proprietary rights over his wife’s body and thus her
consent to every act of sexual intimacy with him is always obligatory or at least,
presumed (People vs. Jumawan, G.R. No. 187495, April 21, 2014),
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G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13,
2012).
However, the penalty for robbery in inhabited house if the robber is armed is
graver than simple robbery. Hence, by hurting the victim, the offender shall be
penalized with a lighter penalty.
In People vs. Napolis, G.R. No. L-28865, February 28, 1972, the Supreme Court
En Banc expressly abandoned the Sebastian doctrine. It was held that imposing a
much lighter penalty if violence upon person is used in addition to forcible entry in
committing robbery defies logic and reason. When the elements of both robbery by
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means of violence and intimidation and robbery by using force upon thing are present,
the crime is a complex one under Article 48 of said Code. Hence, the penalty for
robbery in inhabited house shall be imposed in its maximum period.
In People vs. Disney, G.R. No. L-41336, February 18, 1983, En Banc and
Fransdilla vs. People, GR No. 197562, April 20, 2015 the Supreme Court reaffirmed
the Napolis doctrine.
To be guilty of this crime the accused must have used the check in order to
defraud the complainant. What the law punishes is the fraud or deceit, not the mere
issuance of the worthless check. However, prima facie evidence of deceit exists by law
upon proof that the drawer of the check failed to deposit the amount necessary to
cover his check within three days from receipt of the notice of dishonor (People vs.
Reyes, GR No. 157943, September 04, 2013). But receipt of notice of dishonor is not
an element of this crime.
In other forms of swindling under Article 316, (1) and (2) of RPC, offender
perpetrates false representation involving real property and act of ownership such as
selling it, which causes damage to third person. In paragraph 1, the accused
represents that he owned the property, while in paragraph 2, he expressly represents
in the deed of conveyance that the property is free from encumbrance. In Estrellado-
Mainar vs. People, G.R. No. 184320, July 29, 2015 - The accused is not liable under
paragraph 2 since he did not make an express representation in the deed of
conveyance that the property sold or disposed of is free from any encumbrance.
Neither is he liable under paragraph 1 since he did not pretend to be the lawful owner
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of property by a title issued in the name of her father. The complainant is aware that
the title is still in the name of the father of the accused.
39. OTHER DECEIT - In estafa under Article 315, the false representation is
committed by using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits. Following the principle of ejusdem generis, other deceit
as a means to commit estafa must be similar to pretending to possess power,
imaginary transaction etc. If the deceit is not similar to pretending to possess power or
imaginary transaction, the crime committed is other deceit under Article 318. In
Guinhawa vs. People, G.R. No. 162822 August 25, 2005 - Fraudulent representation
of the seller that the van to be sold is brand new constitutes other deceit under Article
318. On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19,
1069, false representation that accused has a palay by reason of which the victim
parted his money in consideration of the palay constitutes estafa under Article 315.
Unlike in the Guinhawa case, the transaction in Rubaton case is imaginary.
The false pretense made by accused that Primelink was authorized to sell
membership shares is estafa. False pretense of qualification to sell securities is within
the contemplation of the provision on estafa (Lopez vs. People, GR No. 199294, July
31, 2013)
40. THEFT - The only requirement for a personal property to be the object of
theft under the penal code is that it be capable of appropriation. It need not be capable
of "asportation," which is defined as "carrying away." Jurisprudence is settled that to
"take" under the theft provision of the penal code does not require asportation or
carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015);
The subsequent recovery of the stolen motorcycle will not preclude the presence
of the third element. Actual gain is irrelevant as the important consideration is the
intent to gain or animus lucrandi. Intent to gain is an internal act presumed from the
unlawful taking of the motor vehicle which the appellant failed to overcome with
evidence to the contrary. Verily, the mere use of the thing unlawfully taken constitutes
gain (People vs. Asamuddin, G.R. No. 213913, September 02, 2015).
Employee, who failed to return the motorcycle and money of the company, is
liable for carnapping and qualified theft (People vs. Asamuddin, supra)
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If there is a contract of agency, the possession of the agent over the property
owned by principal is juridical. Under the Civil Code, an agent can even assert, as
against his own principal, an independent, autonomous, right to retain money or
goods received in consequence of the agency; as when the principal fails to reimburse
him for advances he has made, and indemnify him for damages suffered without his
fault (Guzman v. Court of Appeals, 99 Phil. 703). Thus, failure of the agent to return
the money or property to the principal is estafa (Carganillo vs. People, G.R. No.
182424, September 22, 2014; Tria vs. People, G.R. No. 204755, September 17, 2014).
In Velayo vs. People, G.R. No. 204025, November 26, 2014 – Accused induced
to complainant to entrust to her the funds for the taxes because she knew someone at
the BIR who could help her facilitate the remittance, and even reduce the amounts
due. She received the money for remit the same to the BIR with full freedom and
discretion. Thus, she had juridical possession of money. The crime committed is
estafa.
Driver of jeepney under boundary arrangement, who did not return the vehicle
to the owner-operator, is liable for carnapping. The law prohibits operator of motor
vehicle from leasing it. In the eye of the law the driver was only an employee of the
owner rather than a lessee. For being an employee, his possession of the jeepney is
physical (People v. Isaac G.R. No. L-7561, April 30, 1955), and thus, misappropriation
thereof is carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004)
In Roque v. People, the Court ruled that qualified theft may be committed even
when the personal property is in the lawful possession of the accused prior to the
commission of the felony. The concept of unlawful taking in theft, robbery and
carnapping being the same, the holding in Roque v. People[44] equally applies to
carnapping. Hence, in People v. Bustinera, appellant, who was hired as taxi driver, was
found guilty of carnapping under R.A. No. 6539 after he failed to return the Daewoo
Racer taxi assigned to him by the cab company where he was employed (People vs.
Asamuddin, G.R. No. 213913, September 02, 2015).
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corporate officer received the property to be utilized in the fabrication of bending machines
in trust from the corporation and he has absolute option on how to use them without
the participation of the corporation. Upon demand, the officer failed to account the
property. Since the corporate officer received the property in trust with absolute option
on how to use them without the participation of the corporation, he acquired not only
physical possession but also juridical possession over the equipment. He is liable for
estafa through misappropriation. 2. In People vs. Go, G.R. No. 191015, August 6,
2014 – The President of the Bank is holding the bank’s fund in trust or for
administration for the bank’s benefit. His possession is juridical. Hence,
misappropriating the funds by making fictitious loan is estafa. 3. In Gamboa vs.
People, G.R. No. 188052, April 21, 2014 - Accused employed as Liaison Officer of a
pawnshop received money in trust to secure or renew licenses and permits. His
possession is juridical. Hence, misappropriating the money is estafa.
42. THEFT OF BULKY GOODS - If the bulky goods are taken by the accused
inside a compound (such as SM), theft is consummated even if the accused failed to
bring out the stolen goods from the compound, which makes him unable to freely
dispose it. Unlawful taking is deemed complete from the moment the offender gains
possession of the thing, even if he has no opportunity to dispose of the same. Inability
to dispose the stolen property is not an element of theft. Unlawful taking is the
element which produces the felony in its consummated stage. Without unlawful
taking, the offense could only be attempted theft, if at all. Thus, theft cannot have a
frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21, 2007). If the
accused is charged with frustrated theft, he could not be convicted of the crime
charged because theft has no frustrated stage. Neither could he be convicted of
consummated theft since it was not alleged in the information. But he could be
convicted of attempted theft because this crime is necessarily included in the charge of
frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015).
43. Theft Of Intangible Property - The term "personal property" in the Revised
Penal Code should be interpreted in the context of the Civil Code. Consequently, any
personal property, tangible or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may be appropriated under Bulk
Sales Law. Thus, the business of providing telecommunication and the telephone
service is a personal property (Laurel vs. Abrogar, G.R. No. 155076, January 13,
2009).
The word "take" in the RPC includes controlling the destination of the property
stolen to deprive the owner of the property, such as the use of a meter tampering, use
of a device to fraudulently obtain gas, and the use of a jumper to divert electricity.
Appropriation of forces of nature which are brought under control by science such as
electrical energy can be achieved by tampering with any apparatus used for generating
or measuring such forces of nature, wrongfully redirecting such forces of nature from
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such apparatus, or using any device to fraudulently obtain such forces of nature
(Laurel vs. Abrogar).
FINDER OF LOST PROPERTY - Any person who, having found lost property,
shall fail to deliver the same to the local authorities or to its owner, is liable for theft. If
the finder surrenders the property found to a policeman, who fails to deliver it the
owner, the policeman is liable for theft. He acquired the position occupied by the
actual finder. Appropriating the property is of the same character of that made by one
who originally found the same (People vs. Avila, G.R. No. L-19786, March 31, 1923).
44. QUALIFIED THEFT - The elements of the crime of theft are: (1) that there
be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of
the owner; and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things. Theft becomes qualified "if committed
by a domestic servant, or with grave abuse of confidence, or if the property stolen is a
motor vehicle, mail matter or large cattle, or consists of coconuts taken from the
premises of a plantation, fish taken from a fishpond or fishery, or if property is taken
on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity,
vehicular accident or civil disturbance (People vs. Bayon, GR No. 168627, July 02,
2010).
Identity of the offended party - In oral defamation, a crime against honor, the
identity of the person against whom the defamatory words were directed is a material
element. Thus, an erroneous designation of the person injured is material (People vs.
Uba, 106 Phil. 332). If the subject matter of a crime against property was money,
identity of the offended party in the information is indispensable for the proper
identification of the offense charged. Since money is generic, it can only be identified
connecting it to the offended party. Thus, the erroneous designation of the offended
party is fatal to the prosecution of the crime. If the subject matter of a crime against
property is specific, identity of the offended party in the information is not
indispensable for the proper identification of the offense charged. Since property is
specific, it can be identified even without connecting it to the offended party (Senador
vs. People, GR No. 201620, March 06, 2013).
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under claim of title offered in good faith is not guilty of robbery even though the claim
of ownership is untenable. “Actus non facit reum, nisi mens sit rea. (Sy vs. Gutierrez,
GR No. 171579, November 14, 2012).
If the accused commits rape and acts of lasciviousness, the latter is absorbed
by the former (People vs. Dy, G.R. Nos. 115236-37, January 29, 2002). But the
doctrine of absorption is not applicable to rape through sexual assault. Inserting
lighted cigarette into the genital orifice and anal orifice of the victim and raping her
constitutes two counts of rape by sexual assault and rape through sexual intercourse
(People vs. Crisostomo, GR No. 196435, January 29, 2014). Inserting the penis into
the mouth of the victim and into her genital orifice constitutes rape through sexual
assault and organ rape (In People vs. Espera, G.R. No. 202868, October 02, 2013).
If the crime charged is rape, but the crime proven is acts of lasciviousness, the
accused will be convicted of the latter because of the variance rule. Acts of
lasciviousness is necessarily included in the charge of rape. If the crime charged is
rape through sexual intercourse, but the crime proven is rape through sexual assault,
the accused cannot be convicted of the latter. The variance rule is not applicable since
rape through sexual assault is not necessarily included in the charge of rape through
sexual intercourse. The elements of these two crimes are materially and substantially
different. In such case, the accused will be convicted of acts of lasciviousness, which is
necessarily included in the charge of rape through sexual intercourse (People vs.
Pareja, GR No. 202122, January 15, 2014; People vs. Cuaycong, G.R. No. 196051,
October 02, 2013; People vs. CA, G.R. No. 183652, February 25, 2015).
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Code is committed against a person of either sex. On the other hand, consented acts
of lasciviousness under Article 339 of the same Code is committed against woman.
Acts of lasciviousness is committed under the any of the circumstances of committing
the old form of rape, and that is, (1) using force or intimidation; or (2) when the
offended party is deprived of reason or otherwise unconscious; or (3) when the
offended party is under 12 years of age. While consented acts of lasciviousness under
Article 339 of the same Code is committed under the any of the circumstances of
committing qualified seduction or simple seduction (e.g. acts of lasciviousness
committed if committed against: (1) a woman by ascendant or brother; (2) a virgin over
twelve years and under eighteen years of age by any person in public authority, priest,
home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall
be entrusted with the education or custody of the woman; or (3) against a woman who
is single or a widow of good reputation, over twelve but under eighteen years of age
committed by means of deceit (See: Dimakuta vs. People, G.R. No. 206513, October
20, 2015).
49. BIGAMY - The elements of bigamy are: (1) the offender has been legally
married; (2) the first marriage has not been legally dissolved, or in case his or her
spouse is absent, the absent spouse has not been judicially declared presumptively
dead; (3) he contracts a subsequent marriage; (4) the subsequent marriage would have
been valid had it not been for the existence of the first (Marbella-Bobis v. Bobis, G.R.
No. 138509, 31 July 2000; Vitangcol vs. People, G.R. No. 207406, January 13, 2016);
(5) fraudulent intention (People vs. Manuel, G.R. No. 165842, November 29, 2005).
1. Validity of the first marriage - To avoid criminal liability for bigamy, the
first marriage must be declared null and void before contracting the second marriage.
This requirement is found in Article 40 of the Family Code, which provides: The
absolute nullity of a previous marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such previous marriage void. A
declaration of the absolute nullity of the first marriage is now explicitly required either
as a cause of action or a ground for defense in bigamy (People vs. Teves, G.R. No.
188775, August 24, 2011).
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Even if the first marriage was contracted prior to the Family Code, this is not a
defense. Article 40, which is a rule of procedure, should be applied retroactively.
The retroactive application of procedural laws is not violative of any right of a person
who may feel that he is adversely affected. The reason is that as a general rule, no
vested right may attach to, nor arise from, procedural laws (Jarillo vs. People, GR No.
164435, June 29, 2010).
Exception: The principle that “one who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of bigamy” is not applicable
where the parties merely signed the marriage contract without marriage ceremony
performed by a duly authorized solemnizing officer. The mere private act of signing a
marriage contract bears no semblance to a valid marriage and thus, needs no judicial
declaration of nullity. Hence, bigamy is not committed (Morigo vs. People, G.R. No.
145226, February 06, 2004).
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The accused misrepresented that they were exempted from the license
requirement based on their fabricated claim that they had already cohabited as
husband and wife for at least five years prior their marriage. Accused cannot use the
voidness of the second marriage as a defense in bigamy because she fraudulently
secured a certificate of marriage, and that is presenting a falsified affidavit of
cohabitation instead of marriage license, The State’s penal laws on bigamy should
not be rendered nugatory by allowing the accused to deliberately ensure that the
second marriage be flawed in some manner, and to thus escape the consequences of
contracting multiple marriages (Santiago vs. People, supra).
The second marriage was celebrated one day before the issuance of the marriage
license. Accused can use the voidness of the second marriage as a defense in bigamy.
In this case, accused did not cause the falsification of public documents in order to
contract a second marriage. He did not fraudulently secure a Certificate of Marriage,
and later used this criminal act as basis for seeking her exculpation. The crime
committed is not bigamy under Article 349 (Santiago vs. People, supra; People v. De
Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079) but marriage contracted
against the provisions of the law under Article 350 (People vs. Peralta, CA-GR No.
13130-R, June 30, 1955).
Accomplice in bigamy - The crime of bigamy does not necessary entail the joint
liability of two persons who marry each other while the previous marriage of one of
them is valid and subsisting. In the crime of bigamy, both the first and second
spouses may be the offended parties depending on the circumstances, as when the
second spouse married the accused without being aware of his previous
marriage. Only if the second spouse had knowledge of the previous undissolved
marriage of the accused could she be included in the information as a co-accused
(Santiago vs. People, G.R. No. 200233, July 15, 2015).
The punishment of the second spouse as a principal to the crime is wrong. The
second spouse, if indicted in the crime of bigamy, is liable only as an accomplice. A
person, whether man or woman, who knowingly consents or agrees to be married to
another already bound in lawful wedlock is guilty as an accomplice in the crime of
bigamy (Santiago vs. People, supra).
Three marriages - X contracted three marriages. His first wife is already dead
when X contracted his third marriage. X is liable for bigamy involving the second
marriage on the basis of his first marriage. X is not liable for bigamy involving the
third marriage on the basis of the first marriage since the first has already been
extinguished by reason of death of the first wife when he contracted the third. He is
not liable for bigamy involving the third marriage on the basis of the second marriage
since the latter is null and void for being a bigamous marriage.
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marriage. The non-filing of a criminal complaint against the couple does not negate
criminal liability of the priest. Article 352 does not make this an element of the crime.
The law sets the minimum requirements constituting a marriage ceremony: first, there
should be the personal appearance of the contracting parties before a solemnizing
officer; and second, their declaration in the presence of not less than two witnesses
that they take each other as husband and wife. For purposes of determining if a
marriage ceremony has been conducted, a marriage certificate is not included in the
requirements (Ronulo vs. People, G.R. No. 182438, July 02, 2014).
The place where libelous article was accessed by the offended party in the
internet is not equivalent to the place where the libelous article is “printed and first
published”. To rule otherwise is to allow the evil sought to be prevented by the
amendment to Article 360, and that was the indiscriminate laying of the venue in libel
cases in distant, isolated or far-flung areas, to harass an accused. At any rate, Article
360 still allow offended party to file the civil or criminal complaint for internet libel in
their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, G.R. No.
184800, May 5, 2010).
Whether the offense committed is serious or slight oral defamation, depends not
only upon the sense and grammatical meaning of the utterances but also upon the
special circumstances of the case, like the social standing or the advanced age of the
offended party. "The gravity depends upon: (1) the expressions used; (2) the personal
relations of the accused and the offended party; and (3) the special circumstances of
the case, the antecedents or relationship between the offended party and the offender,
which may tend to prove the intention of the offender at the time. In particular, it is a
rule that uttering defamatory words in the heat of anger, with some provocation on the
part of the offended party constitutes only a light felony (De Leon vs. People, G.R. No.
212623, January 11, 2016).
There are cases where the Court considered the circumstances of the concerned
parties and held that the defamation was grave serious in nature.
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guilty of grave oral defamation as the scurrilous words he imputed to the offended
party constituted the crime of estafa.
In some cases, the Court has declared that the defamatory utterances were not
grave on the basis of the peculiar situations obtaining.
In the case of People v. Arcand, a priest called the offended party a gangster in
the middle of the sermon. The Court affirmed the conviction of the accused for slight
slander as there was no imputation of a crime, a vice or immorality. In Pader v.
People, the Court ruled that the crime committed was only slight oral defamation as it
considered the expression, "putang ina mo," as expression to convey anger or
displeasure. Such utterance was found not seriously insulting considering that he was
drunk when he uttered those words and his anger was instigated by what the private
complainant did when the former's father died. Also in Jamilano v. Court of
Appeals, where calling someone "yabang" (boastful or arrogant) was found not
defamatory, the complainant's subsequent recourse to the law on oral defamation was
not sustained by the Court.
Considering the factual backdrop of this case, the Court is convinced that the
crime committed by De Leon was only slight oral defamation for the following reasons:
First, as to the relationship of the parties, they were obviously acquainted with
each other as they were former jogging buddies. Prior to the purported gun-pointing
incident, there was no reason for De Leon to harbor ill feelings towards SPO3
Leonardo.
Second, as to the timing of the utterance, this was made during the first
hearing on the administrative case, shortly after the alleged gun-pointing incident. The
gap between the gun-pointing incident and the first hearing was relatively short, a
span of time within which the wounded feelings could not have been healed. The
utterance made by De Leon was but a mere product of emotional outburst, kept inside
his system and unleashed during their encounter.
Third, such words taken as a whole were not uttered with evident intent to
strike deep into the character of SPO3 Leonardo as the animosity between the parties
should have been considered. It was because of the purported gun-pointing incident
that De Leon hurled those words. There was no intention to ridicule or humiliate SPO3
Leonardo because De Leon's utterance could simply be construed as his expression of
dismay towards his actions as his friend and member of the community (De Leon vs.
People, G.R. No. 212623, January 11, 2016).
CRIMINAL NEGLIGENCE
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The rights and privileges of a child in conflict with the law are as follows:
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Under Section 98 of RA No. 9165, the provisions in Revised Penal Code are not
applicable unless the accused is a minor. In such case, the penalty of life
imprisonment shall be considered reclusion perpetua. In sum, if the accused is a
minor, Article 68 of Revised Penal Code on the privilege mitigating circumstance of
minority shall apply to crime of illegal possession of dangerous drug even though this
is malum prohibitum punishable by life imprisonment. Hence, the penalty of life
imprisonment for illegal possession of dangerous drug committed by a minor, which is
treated as reclusion perpetua, shall be graduated to reclusion temporal because of the
privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227,
July 20, 2011)
a. Promulgation of judgment - Once the child in conflict with the law is found
guilty of the offense charged, the court, instead of pronouncing judgment of conviction,
shall place him under suspended sentence, without need of application (1984 Bar
Exam). But the court shall determine and ascertain any civil liability which may have
resulted from the offense committed (Section 38 of RA 9344). In other words, the
suspension of sentence does not extend to civil aspect of the case. If the child in
conflict with the law is found innocent or exempt for criminal liability the
pronouncement of judgment of acquittal shall not be suspended.
b. Application, not required - Under the old rule, application for suspension of
sentence is required. But under Section 38 of RA 9344, the court shall place the child
in conflict with the law under a suspended sentence without need of application.
c. Reaching the age of majority -Under the old rule, a child in conflict with
the law is not entitled to a suspended sentence upon reaching 18 years of age.
However, under Section 38 of RA No. 9344, the suspension of sentence shall still be
applied even if the child in conflict with the law is already 18 years of age or more at
the time of pronouncement People vs. Ancajas, G.R. No. 199270, October 21, 2015).
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d. No disqualification - Under the old rule, the child in conflict with the law is
disqualified from the benefit of suspended sentence if he had been sentenced to death,
life imprisonment, reclusion Perpetua (1995 Bar Exam). However, under RA No. 9344,
Section 38 makes no distinction as to the nature of offense by the child. Thus, the
court should not distinguish between a minor, who is guilty of capital offense or lesser
offense. The Senate debate discloses that the suspension is applicable to heinous
crime (People vs. Sarcia, G.R. No. 169641, September 10, 2009; People vs. Jacinto,
G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R. No. 199270, October 21,
2015). Even a recidivist minor is entitled a suspended sentence.
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54. CHILD ABUSE - Twelve years old and above - If the child is 12 years old
and above, and the acts of the accused constitute sexual abuse (or child prostitution)
under RA No. 7610 and rape or acts of lasciviousness, the latter shall be prosecuted
as follows:
If the acts committed against a child, who is 12 years old and above, constitute
sexual abuse and rape or acts of lasciviousness, the perpetrator cannot be charged
with both crimes for the same act because his right against double jeopardy will be
prejudiced. Both crimes are of the same nature since the essence of both is having sex
without consent. Consent of the child is not recognized by law. Likewise, rape cannot
be complexed with sexual abuse. Under Section 48 of RPC, a felony cannot be
complexed with an offense penalized by a special law. In such case, he shall be
prosecuted either for sexual abuse or rape through sexual intercourse (People v. Abay,
G.R. No. 177752, February 24, 2009; People vs. Pangilinan, G.R. No. 183090, Nov. 14,
2011, People v. Dahilig, G.R. No. 187083, June 13, 2011, People v. Matias, G.R. No.
186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June
19, 2013) depending upon which of the laws prescribes a higher penalty.
If the acts committed against a child, who is 12 years old and above, constitute
sexual abuse and rape through sexual intercourse or rape through sexual assault with
homicide, the perpetrator shall be prosecuted for rape because the Revised Penal Code
prescribes a higher penalty.
If the acts committed against a child, who is 12 years old and above, constitute
sexual abuse and rape through sexual assault or acts of lasciviousness, the perpetrator
shall be prosecuted for sexual abuse because RA No. 7610 prescribes a higher penalty.
In Dimakuta vs. People, G.R. No. 206513, October 20, 2015 – If the victim of
the lascivious acts or conduct is over 12 years of age and under eighteen (18) years of
age, the accused shall be liable for consented acts of lasciviousness under Article 339
of the Revised Penal Code or acts of lasciviousness under Article 336. However, in case
the acts of lasciviousness is covered by lascivious conduct under Section 5 (b) RA No.
7610 and it is done through coercion or influence, which establishes absence or lack
of consent, then Art. 336 of the Code is no longer applicable. Accused shall be held
liable for sexual abuse. In instances where the lascivious conduct is covered by
Section 5 (b) of RA No. 7610 (on sexual abuse), where the penalty is reclusion
temporal medium, and the act is likewise covered by (rape through) sexual assault
under Article 266-A, paragraph 2 of the RPC, which is punishable by prision
mayor, the offender should be liable for violation of Section 5(b), Article III of R.A. No.
7610, where the law provides for the higher penalty of reclusion temporal medium, if
the offended party is a child victim
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Under twelve years old – If the child is under 12 years old, and the acts of the
accused constitute sexual abuse (or child prostitution) under RA No. 7610 and rape or
acts of lasciviousness, the latter shall be prosecuted penalized as follows:
a. If the acts committed against a child, who is under 12 years old, constitute
sexual abuse and rape through sexual intercourse, the perpetrator shall not be
prosecuted for sexual abuse under RA No. 7610. He shall be prosecuted and penalized
for statutory rape under Revised Penal Code (People vs. Pangilinan, GR No. 183090,
November 14, 2011). Under Section 5 of RA No. 7610, when the child exploited in
prostitution or subject to sexual abuse is under twelve years of age, the perpetrators
shall be prosecuted for rape under the Revised Penal Code.
b. If the acts committed against a child, who is under 12 years old, constitute
sexual abuse and acts of lasciviousness, the perpetrator shall be prosecuted for acts of
lasciviousness under the Revised Penal Code but penalized under RA No. 7610, which
has prescribed the penalty of reclusion temporal in its medium period. Under Section
5 of RA No. 7610, when the child exploited in prostitution or subject to sexual abuse is
under twelve years of age, the perpetrators shall be prosecuted under the Revised
Penal Code on lascivious conduct: Provided, That the penalty for it shall be reclusion
temporal in its medium period
c. If the acts committed against a child, who is under 12 years old, constitute
sexual abuse and simple rape through sexual assault, the letters of Section 5 of RA No.
7610 require that the perpetrator shall be prosecuted and penalized under Revised
Penal Code. However, this rule is unfair. If the victim is under 12 year old, the penalty
for acts of lasciviousness in relation to RA No. 7610 is reclusion temporal in its medium
period; while that for rape through sexual assault is only prision mayor. In sum, the
penalty for acts of lasciviousness is higher than that for rape by sexual assault
although the criminal degree of the former is lesser than that of the latter. To prevent
unfairness, the Supreme Court in People vs. Chingh, G.R. No. 178323, March 16,
2011 imposed the penalty of reclusion temporal in its medium period under RA No.
7610 for simple rape through sexual assault committed against a 10 year old child.
The Court stated: “To be sure, it was not the intention of the framers of RA No. 8353 (on
rape through sexual assault), to have disallowed the applicability of RA No. 7610 to
sexual abuses committed to children. Despite the passage of RA No. 8353, R.A. No. 7610
is still good law, which must be applied when the victims are children.”
d. If the acts committed against a child, who is under 12 years old, constitute
sexual abuse and qualified rape by sexual assault, the letters of Section 5 of RA No.
7610 require that the perpetrator shall be prosecuted and penalized under Revised
Penal Code. This rule is not unfair since the Revised Penal Code has prescribed grave
penalty for it, and that is, reclusion temporal. Hence, the letter of the law shall be
applied to its full extent. In People vs. Bonaagua, G.R. No. 188897, June 6, 2011,
since the crime committed (against an 8-year-old child) is rape through sexual assault
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57. BP BLG. 22 and ESTAFA - There is no estafa if the check was issued to
cover pre-existing obligation or replace a previously issued check. In People vs. Chua,
G.R. No. 130632, September 28, 1999 - Ineluctably, the replacement checks were
issued in payment of an obligation long contracted and incurred. It cannot therefore
be said that accused committed fraudulent acts in the issuance and the indorsement
of the replacement checks. In short, the replacement checks were by no means the
device used by accused to induce complainant to lend her money without which the
transaction would not have been consummated.
However, accused is liable under Batas Pambansa Blg. 22 for issuing four
replacement checks. The law makes the mere act of issuing a worthless check
punishable as a special offense. The gravamen of the offense under this law is the act
of issuing a worthless check or a check that is dishonored upon its presentment for
payment. The law has made the mere act of issuing a bum check a malum
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prohibitum, an act proscribed by legislature for being deemed pernicious and inimical
to public welfare. It is undisputed that the four replacement checks in question were
issued by accused and that these were all dishonored due to insufficiency of funds.
Demand letter was given with the security guard with the instruction to hand
it to accused. But there is no showing that the letter ever reached accused. Counsel
sent a demand letter to accused by registered mail which was returned with the
notation "N/S Party Out 12/12/05" and that accused did not claim it despite three
notices to her. Since there is insufficient proof that accused actually received the
notice of dishonor, the presumption that she knew of the insufficiency of her funds
cannot arise. Accused was acquitted. However, he is still civilly liable (San Mateo vs.
People, G.R. No. 200090, March 6, 2013).
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will honor the check. Since petitioner's bank account was already closed even before
the issuance of the subject check, he had no right to expect or require the drawee
bank to honor his check. By virtue of the aforequoted provision of law, petitioner is not
entitled to be given a notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26,
2008, ).The crime involved in Lopez vs. People is estafa through issuance of bouncing
check. However, it is submitted the Lopez principle can be applied to violation of BP
22.
Payment of check after the filing of information is not a defense. Since there is
no showing of intention to mitigate or totally alleviate the ill effects of his issuance of
the unfunded check, then there is no equitable and compelling reason to preclude the
prosecution of accused. In such a case, the letter of the law should be applied to its
full extent (Lim vs. People, supra).
In estafa, damage and deceit are the essential elements of the offense, and the
check is merely the accused's tool in committing fraud. In such a case, paying the
value of the dishonored check will not free the accused from criminal liability. It will
merely satisfy the civil liability of the crime but not the criminal liability (Lim vs.
People, supra). Note: The essence of estafa is to punish fraud and not to protect the
integrity of the check.
Suspension of payment order issued by SEC after three months from receipt of
notice of dishonor is not a defense in violation of BP Blg. 22. Since there is no
suspension of payment when the notice of dishonor was received, the drawer was not
precluded from making good the check during that three-month gap when he received
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the letter and when the SEC issued the order (Tiong Rosario vs. Co, G.R. No. 133608,
August 26, 2008).
59. RA NO. 3019 – In Giangan vs. People, G.R. No. 169385, August 26, 2015 -
Giangan as the barangay chairman acted upon the honest and sincere belief that he
was then summarily abating the nuisance that a regular user of the obstructed road
had just reported to him. A further indication of the good faith of Giangan was the
turning over of the wooden posts to the police station, manifesting that the accused
were acting within the scope of their authority. Good faith means honest, lawful intent;
the condition of acting without knowledge of fraud, and without intent to assist in a
fraudulent or otherwise unlawful scheme. Also, the act complained of was rendered
inconsistent with the manifest partiality and bad faith that the law punished. He was
acquitted of violation of Section 3 (e) of RA No. 3019 because the element of evident
bad faith is not present.
Private individual - Only public officer can be held criminally liable for
violation of RA No. 3019. However, if there is conspiracy, the act of the public officer in
violating RA No. 3019 is imputable to the private individual although there are not
similarly situated in relation to the object of the crime. Moreover, Section 9 provides
penalty for public officer or private person for crime under Section 3. Hence, a private
individual can be prosecuted for violation of RA No. 3019 (Go vs. The Fifth Division,
Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public officer with
whom the private individual allegedly conspired, the latter can still be prosecuted for
violation of RA No. 3019. Death extinguishes the criminal liability but not the crime.
Hence, if there is proof of the crime and conspiracy of dead public officer with private
individual, the latter can still be convicted of violation of RA No. 3019 (People vs. Go,
GR NO. 168539, March 25, 2014).However, the public officer with whom the private
individual allegedly conspired is acquitted, the latter should also be acquitted (Marcos
vs. Sandiganbayan, G.R. No. 126995, October 6, 1998).
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Undue delay - There was really no sufficient justification tendered by the State
for the long delay of more than five years in bringing the charges against the
respondents before the proper court. On the charge of robbery, the preliminary
investigation would not require more than five years to ascertain the relevant factual
and legal matters. Because of the inordinate delay in resolving the criminal complaint
by the Ombudsman against respondent, the cases against respondent were dismissed
(People vs. Hon. Sandiganbayan, and Perez, G.R. No. 188165, December 11, 2013).
In Consigna vs. People, G.R. no. 175750, April 2, 2014 – Petitioner, a municipal
treasurer, is considered a public officer discharging official functions when she
misused such position to be able to take out a loan from complainant, who was misled
into the belief that former, as municipal treasurer, was acting on behalf of the
municipality. The petitioner misrepresented that the loan is to be used to pay for the
salaries of the employees of the municipality and to construct the municipal
gymnasium. The victim could have been the Municipality of General Luna since the
checks signed by the mayor was issued to the complainant. It was just fortunate that
the mayor instructed the bank to stop payment of the checks issued by petitioner.
Thus, the municipal treasurer can be held liable for violation of Section 3 (e) of RA No.
3019 for causing damage to complainant.
Second element - The accused must have acted with manifest partiality, evident
bad faith or gross inexcusable negligence Section 3(e) of RA 3019 may be committed
either by dolo, as when the accused acted with evident bad faith or manifest partiality,
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Arias principle - The property bought by the City is overpriced. Accused was
charged with violation of Section 3 (e) of RA No. 3019 for causing damage to the
government through manifest partiality and evident bad faiths. The only evidence
presented by the prosecution is his on the voucher. He was acquitted. Accused cannot
be convicted on grounds than the mere signature or approval appearing on a voucher.
Heads of offices can rely to a reasonable extent on their subordinates on preparation
of bids, purchase of supplies, or negotiations (Arias v. Sandiganbayan, G.R. Nos.
81563 & 82512, 19 December 1989).
However, the principle in the Arias case where is not applicable where
circumstances other than signature of the voucher shows evident bad faith, manifest
partiality or gross inexcusable negligence such as: (1) Where the accused has
foreknowledge of existing anomaly - e.g. mayor signed the inspection report and the
disbursement voucher despite the fact that he had foreknowledge that the materials
delivered by Guadines have already been confiscated by the DENR (Escara vs. People,
G.R. No. 164921, July 8, 2005); (2) Where there is deviation from ordinary procedure –
e.g. mayor issued and encashed municipal checks despite the facts that the
disbursement vouchers were in the name of Kelly Lumber but the checks were payable
to the accused and not to Kelly Lumber (Cruz vs. The Hon. Sandiganbayan, G.R. No.
134493, August 16, 2005); and (3) Where accused approved the voucher without
indication of the retention money required by law, and he even inspected the
construction site of PAL Boat, in which he should have noticed the financial weakness
of the contractor and the defective works (Rivera vs. People, G.R. No. 156577,
December 03, 2014).
Arias principle is not applicable if the public officer acting in his capacity as
head of office has not relied on his subordinates but on officers of equal rank such as
heads of the Office of the City Treasurer and, the Office of the City Accountant (Jaca
vs. People, G.R. No. 166967, January 28, 2013).
Third element - His action caused undue injury to any party, including the
government or gave any private party unwarranted benefits, advantage or preference in
the discharge of his functions. There are two (2) ways by which a public official violates
Section 3(e) of R.A. No. 3019 in the performance of his functions, namely: (1) by
causing undue injury to any party, including the Government; or (2) by giving any
private party any unwarranted benefit, advantage or preference. The accused may be
charged under either mode or under both. The disjunctive term “or” connotes that
either act qualifies as a violation of Section 3(e) of R.A. No. 3019. ] In other words, the
presence of one would suffice for conviction. "To be found guilty under the second
mode, it suffices that the accused has given unjustified favor or benefit to another, in
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the exercise of his official, administrative and judicial functions." The element of
damage is not required for violation of Section 3 (e) under the second mode (Braza vs.
the Hon. Sandiganbayan, G.R. No. 195032, February 20, 2013; Rivera vs. People, G.R.
No. 156577, December 03, 2014).
First mode - The concept of "undue injury," in the context of Section 3(e) RA
No. 3019 is the same as the civil law concept of "actual damage." It is required that
undue injury must be specified, quantified and proven to the point of moral certainty.
Speculative or incidental injury is not sufficient. The damages suffered cannot be
based on flimsy and non-substantial evidence or upon speculation, conjecture or
guesswork but must depend on competent proof and on the best evidence obtainable
regarding specific facts which could afford some basis for measuring compensatory or
actual damage (M.A. Jimenez Inc. vs. The Hon. Ombudsman, G.R. No. 155307, June
06, 2011).
Second mode - In the first mode of committing the crime, the undue injury is
caused to any party including the government. In the second mode, the unwarranted
benefits, advantage or preference is given to private party. Giving unwarranted
benefits, advantage or preference to the government or public official is not
constitutive of the crime under Section 3 (e). The term "private party" may be used to
refer to persons other than those holding public office (Bautista vs. Sandiganbayan,
G.R. No. 136082, May 12, 2000) or public officer acting in a private capacity to protect
his personal interest (Ambil vs. Sandiganbayan, G.R. No. 175457, July 06, 2011).
Giving unwarranted benefit to the mayor transferring him from the provincial jail and
detained him at a residence is a violation of Section 3 (e). Such privilege was accorded
to the mayor not in his official capacity, but as a detainee charged with murder. Thus,
for purposes of applying the provisions of Section 3(e), the mayor was a private party
(Ambil vs. Sandiganbayan, supra).
The allegations in the information charging the violation of Section 4(a) of R.A.
No. 3019, if hypothetically admitted, would establish the elements of the offense,
considering that: (1) Disini, being the husband of Paciencia Escolin-Disini, the first
cousin of First Lady Imelda Romualdez-Marcos, and at the same time the family
physician of the Marcoses, had close personal relations and intimacy with and free
access to President Marcos, a public official; (2) Disini, taking advantage of such
family and close personal relations, requested and received $1,000,000.00 from Burns
& Roe and $17,000,000.00 from Westinghouse, the entities then having business,
transaction, and application with the Government in connection with the PNPPP; (3)
President Marcos, the public officer with whom Disini had family or close personal
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relations, intervened to secure and obtain for Burns & Roe the engineering and
architectural contract, and for Westinghouse the construction of the PNPPP.
The rule directing full disclosure of wealth in the SALN is a means of preventing
said evil and is aimed particularly at minimizing if not altogether curtailing the
opportunities for official corruption and maintaining a standard of honesty in the
public service. By the SALN, the public is able to monitor movement in the fortune of a
public official; it serves as a valid check and balance mechanism to verify undisclosed
properties and wealth (Gupilan-Aguilar vs. Office of the Umbudsman, G.R. No.
197307, February 26, 2014).
Unlawful activity also includes violation of the Electronic Commerce Law, the
Revised Forestry Code, Fisheries Code, Wildlife Resources Conservation and Protection
Act, the National Caves and Cave Resources Management Protection Act, the
Intellectual Property Code; the Securities Regulation Code; and felonies or offenses of
a similar nature that are punishable under the penal laws of other countries (Section
3 of RA No. 9160 as amended by RA No. 10365).
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Any person may be charged with and convicted of both the offense of money
laundering and the above-enumerated unlawful activity. The prosecution of money
laundering shall proceed independently of any proceeding relating to the unlawful
activity (Section 6 of RA No. 9160 as amended by RA No. 10365).
61. LOOSE FIREARM - When loose firearm is used in committing a crime with
a graver penalty, the accused shall be prosecuted for the graver crime, but the court
shall apply the penalty in its maximum period (Section 29, RA No. 10591). Use of loose
firearm is a special aggravating circumstance (People vs. Salibad, G.R. No. 210616,
November 25, 2015) similar to quasi-recidivism because its presence will require the
application of the penalty in its maximum period regardless of the presence of
mitigating circumstance (People vs. Salahuddin, G.R. No. 206291, January 18, 2016).
For example, if a loose firearm was used in committing homicide, the accused
shall be held liable for homicide and the court shall apply reclusion temporal
prescribed for it in its maximum period. This special aggravating circumstance can be
appreciated even though the loose firearm was not presented as evidence (People vs.
Salibad, supra) as long as there is proof that accused used firearm in committing a
crime (slugs were recovered from the dead body of the victim) and he has no license to
possess a firearm (People vs. Salahuddin, supra).
Use of dangerous drugs - Where the presence of dangerous drugs as basis for
possession is only in the form of residue and there is a positive confirmatory test
result, the accused should be charged with use of dangerous drugs rather than
possession of dangerous drugs. This would be in keeping with the intent of the law to
file charges of use of dangerous drugs in order to rehabilitate first time offenders of
drug use and provide them with an opportunity to recover for a second chance at life
(People vs. Matinez, G.R. No. 191366, December 13, 2010).
For illegal possession of dangerous drugs, the prosecution must establish that the
accused freely and consciously possessed the dangerous drug without authority.
However, mere possession of dangerous drug constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused in the absence of any
satisfactory explanation (Asiatico vs. People, G.R. No. 195005, September 12, 2011).
Attempted Sale - “A”, poseur buyer, asked “X” if he has available “shabu” for
sale. “X” answered in the affirmative and showed to “A” a plastic sachet containing
shabu. “A” immediately identified himself as a policeman, and then, apprehended “X”
and confiscated the “shabu” from his pocket. What is the crime committed by “X”? “X”
is liable for attempted sale of shabu punishable under Section 26 of RA
9165. Attempt to sell shabu was shown by the overt act of appellant therein of
showing the substance to the poseur-buyer. The sale was aborted when the police
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officers identified themselves and placed appellant under arrest (People vs. Figueroa,
G.R. No. 186141, April 11, 2012).
Confirmatory Test - In Ambre vs. People, G.R. No. 191532. August 15, 2012 -
In no instance did accused challenge, at the RTC, the supposed absence of
confirmatory drug test conducted on her. Accused only questioned the alleged
omission when she appealed her conviction before the CA. It was too late in the day
for her to do so. Well entrenched is the rule that litigants cannot raise an issue for the
first time on appeal as this would contravene the basic rules of fair play and justice.
Under Section 21 of RA No. 9165, the apprehending team having initial custody
and control of the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused, his representative
or counsel, media and DOJ, and any elected public official. Non-compliance with the
requirements of Section 21 of R.A. No. 9165 will not necessarily render the items
seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the
letter of Section 21 is not required if there is a clear showing that the integrity and the
evidentiary value of the seized items have been preserved (David vs. People, Gr No.
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181861, October 17, 2011, ; Marquez vs. People, G.R. No. 197207, March 13, 2013;
People vs. Morate, GR No. 201156, January 29, 2014; People vs. Ladip, GR No.
196146, March 12, 2014; People vs. Bis, GR No. 191360, March 10, 2014).
Thus, the following links must be established in the chain of custody in a buy-
bust situation: first, the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; second, the turn over of the
illegal drug seized by the apprehending officer to the investigating officer; third, the
turn over by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and fourth, the turn over and submission of the marked
illegal drugs seized from the forensic chemist to the court (People vs. Constantino, Jr.
GR No. 199689, March 12, 2014)
In order to effectively fulfill the intent of the law to rehabilitate drug users, this
Court thus calls on law enforcers and prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges when the presence of dangerous drugs is
only and solely in the form of residue and the confirmatory test required under Sec. 15
is positive for use of dangerous drugs. In such cases, to afford the accused a chance to
be rehabilitated, the filing of charges for or involving possession of dangerous drugs
should only be done when another separate quantity of dangerous drugs, other than
mere residue, is found in the possession of the accused as provided for in Sec. 15.
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Importation Of Dangerous Drugs - In People vs. Chan Liu, G.R. No. 189272,
January 21, 2015, accused were caught by police authorities on board a speedboat
carrying shabu. They were charged with importation of dangerous drugs. However,
since it was not proven that the drugs came from China or foreign country they were
convicted of possession of dangerous drugs, which is necessarily included in the
charge of importation.
63. HAZING - In Villareal vs. People, G.R. No. 151258, February 1, 2012, the
accused was liable for reckless imprudence resulting in homicide involving the death
of Lenny Villa during hazing rite. This is not anymore controlling. The crime
committed if a neophyte died during hazing rite is hazing punishable by RA No. 8049.
Prior to RA No. 8049, good faith is a defense in homicide where the victim is
killed during hazing. The consent of the victim and lack of intent to kill of the accused
will negate dolo, which is an important element of homicide. Hence, the crime
committed only reckless imprudence resulting in homicide (Villareal vs. People, supra).
Having in mind the principle of mala in se adhered to under the RPC, where good faith
is a defense, the Congress did not simply enact an amendment thereto. Instead, it
created a special law on hazing, founded upon the principle of mala prohibita where
good faith is not a defense. The deliberation of the Senate shows that what is
important is not the intention to kill the neophyte during the hazing but the result of
the act of hazing. Recognizing the malum prohibitum characteristic of hazing, the law
provides that any person charged with the said crime shall not be entitled to the
mitigating circumstance that there was no intention to commit so grave a wrong. Also,
the framers of the law intended that the consent of the victim to be sodomized or
injured shall not be a defense in hazing. The very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. Sodomy or death of the victim
will only aggravate the offense (Dungo vs. People, G.R. No. 209464, July 01, 2015).
The elements of the crime of hazing are: (1) That there is an initiation rite or
practice as a prerequisite for admission into membership in a fraternity, sorority or
organization; (2) That there must be a recruit, neophyte or applicant of the fraternity,
sorority or organization; and (3) That the recruit, neophyte or applicant is placed in
some embarrassing or humiliating situations such as forcing him to do menial, silly,
foolish and other similar tasks or activities or otherwise subjecting him to physical or
psychological suffering or injury (Dungo vs. People, supra; People vs. Bayabos, G.R. No.
171222, February 18, 2015).
Under Section 4 of RA 8049, the officers and members of the fraternity, sorority
or organization who actually participated in the infliction of physical harm upon
recruit, neophyte or applicant on occasion of hazing shall be liable as principals for
the crime of hazing. Hazing is an initiation rite or practice as a prerequisite for
admission into membership in a fraternity, sorority or organization or a requirement
for employment in a corporation by placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations.
The law, however, did not limit the definition of these groups to those formed
within academic colleges and universities. Organization includes – but is not limited to
– groups, teams, fraternities, sororities, citizen army training corps, educational
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R.A. No. 8049 qualifies that the physical, mental and psychological testing and
training procedure and practices to determine and enhance the physical, mental and
psychological fitness of prospective regular members of the AFP and the PNP, as
approved by the Secretary of National Defense and the National Police Commission,
duly recommended by the Chief of Staff of the AFP and the Director General of the
PNP, shall not be considered as hazing (Dungo vs. People, supra).
And not all forms of initiation rites are prohibited by the law. Section 2 thereof
provides that initiation rites of fraternities, sororities or organizations shall be allowed
provided that the following requisites are met: (1) That the fraternity, sorority or
organization has a prior written notice to the school authorities or head of
organization; (2) The said written notice must be secured at least seven (7) days before
the conduct of such initiation; (3) That the written notice shall indicate: (a) The period
of the initiation activities, which shall not exceed three (3) days; (b) The names of those
to be subjected to such activities; and (c) An undertaking that no physical violence be
employed by anybody during such initiation rites (Dungo vs. People, supra).
Section 3 of R.A. No. 8049 imposes an obligation to the head of the school or
organization or their representatives that they must assign at least two (2)
representatives, as the case may be, to be present during these valid initiations. The
duty of such representative is to see to it that no physical harm of any kind shall be
inflicted upon a recruit, neophyte or applicant (Dungo vs. People, supra).
The first class of principals would be the actual participants in the hazing. If
the person subjected to hazing or other forms of initiation rites suffers any physical
injury or dies as a result thereof, the officers and members of the fraternity, sorority or
organization who actually participated in the infliction of physical harm shall be liable
as principals. Interestingly, the presence of any person during the hazing is prima
facie evidence of actual participation, unless he prevented the commission of the acts
punishable herein.
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can be rebutted by proving that the accused took steps to prevent the commission of
the hazing.
Generally, mere presence at the scene of the crime does not in itself amount to
conspiracy. Exceptionally, under R.A. No. 8049, the participation of the offenders in
the criminal conspiracy can be proven by the prima facie evidence due to their
presence during the hazing, unless they prevented the commission of the acts therein.
This rule on prima facie evidence does not shatter the presumptive innocence
the accused enjoys because, before prima facie evidence arises, certain facts have still
to be proved; the trial court cannot depend alone on such evidence, because precisely,
it is merely prima facie. It must still satisfy that the accused is guilty beyond
reasonable doubt of the offense charged. Neither can it rely on the weak defense the
latter may adduce."
The second class of principals would be the officers, former officers, or alumni
of the organization, group, fraternity or sorority who actually planned the
hazing. Although these planners were not present when the acts constituting hazing
were committed, they shall still be liable as principals. The provision took in
consideration the non-resident members of the organization, such as their former
officers or alumni.
The accused claim that the information avers a criminal charge of hazing by
actual participation, but the only offense proved during the trial was hazing by
inducement. The information alleged that the accused during a planned initiation rite
and being then officers of APO fraternity used personal violence upon a neophyte
resulting to his death. The "planned initiation rite" as stated in the information
included the act of inducing victim to attend it. Accused not only induced victim to be
present at the resort, but they actually brought him there. The hazing would not have
been accomplished were it not for the acts of the petitioners that induced the victim to
be present (Dungo vs. People, supra).
The next class of principals would be the fraternity or sorority's adviser who
was present when the acts constituting hazing were committed, and failed to take
action to prevent them from occurring. The liability of the adviser arises, not only from
his mere presence in the hazing, but also his failure to prevent the same.
The last class of principals would be the parents of the officers or members of
the fraternity, group, or organization. The hazing must be held in the home of one of
the officers or members. The parents must have actual knowledge of the hazing
conducted in their homes and failed to take any action to avoid the same from
occurring.
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The law also provides for accomplices in the crime of hazing. The school
authorities, including faculty members, who consented to the hazing or who have
actual knowledge thereof, but failed to take any action to prevent the same from
occurring shall be punished as accomplices.
Likewise, the owner of the place where the hazing was conducted can also be an
accomplice to the crime. The owner of the place shall be liable when he has actual
knowledge of the hazing conducted therein and he failed to take any steps to stop the
same (Dungo vs. People, supra)
(1) That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons; (Note: Senator Pogi can be held liable for plunder even if
the principal offender, who masterminded the plunder of pork barrel, is a private
individual, the Pork-barrel Queen. What is important is that Senator Pogi in
connivance with Pork-barrel Queen acquired ill-gotten wealth). On the other hand,
Pork-barrel Queen can be held liable for plunder on the basis of conspiracy.
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(3) That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00 (Joseph Ejercito Estrada vs.
Sandiganbayan, G.R. No. 148560, November 19, 2001).
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The damages suffered by the government in diverting the road from the
poblacion to the farm of the accused shall not be considered in determining if plunder
is committed. What is important is the amount of ill-gotten wealth acquired by the
public officer and not the amount of damage suffered by the government.
In People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007 -
One of the predicate crimes alleged in the information is misappropriation of the excise
tax share of Ilocos Sur. This was not proven beyond reasonable doubt. However, the
following predicate crimes were alleged and proven by evidence (1) series of acts of
receiving collections from "jueteng" in the aggregate amount of P545,291,000.00; and
(2) series consisting of two acts of ordering the GSIS and the SSS to purchase shares
of stock of Belle Corporation and collecting or receiving commission from the sales of
Belle Shares in the amount of P189,700,000.00. This pattern of criminal acts indicates
an overall unlawful scheme or conspiracy to amass ill-gotten wealth in the amount of
more than P50 million. Estrada was convicted of plunder.
Neither the physical injuries suffered by the victim nor the actual physical
violence done by the perpetrator are necessary to prove the essential elements of the
crime as defined in Section 5(i) of RA No. 9262. The only exception is, as in the case at
bar, when the physical violence done by the accused is alleged to have caused the
mental and emotional suffering; in which case, such acts of physical violence must be
proven. Accused’s acts of publicly punching, kicking and stripping victim of her pants
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and underwear, although obvious acts of physical violence, are also instances of
psychological violence since it was alleged and proven that they resulted in her public
ridicule and humiliation and mental or emotional distress (Dinamling vs. People,
supra).
RA No. 10158 shall be given retroactive effect. Under Section 2 and 3 thereof,
all pending cases for vagrancy shall be dismissed and all persons serving sentence for
vagrancy shall be immediately released. Since RA No. 10158 expressly provides
retroactive application to the law without distinction, case will be dismissed even
though the accused is a habitual delinquent.
2. Under Article 351 of RPC, a woman in contracting marriage within 301 days
from death of husband, or dissolution or annulment of marriage is liable for the crime
of premature marriage. However, RA No. 10655 decriminalizes premature marriage by
repealing Article 351. Premature marriage has been decriminalized because Article
351 discriminates women since this provision is not applicable to men. Moreover,
Article 351 sought to prevent a possible confusion as to whether the father of the child
born within the prohibited period is the first husband or the second. This preventive
measure is not anymore necessary since paternity and filiation could now be easily
determined through modern technology.
67. WIRE TAPPING LAW - MMDA officer is extorting money from a driver
of a vehicle, who committed trafficking violation along Edsa. The officer threatened the
driver that he will confiscate her driver’s license unless she will give him P500.00.
However, MMDA officer is not aware that his act of extorting money is being video-
recorder by a passenger. The passenger violated the Anti-Wire Tapping Law. The
recording of private conversations without the consent of the parties contravenes the
provisions of RA No. 4200(Anti-Wire Tapping Law). The law covers even those recorded
by persons privy to the private communications. The law is applicable even if the
conversation being recorder pertains to criminal extortion (Mamba vs. Garcia, A.M. No.
MTJ-96-1110, June 25, 2001). Passenger is criminally liable for violating law. On the
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other hand, MMDA officer is liable for attempted robbery. However, in proving
attempted robbery, the driver cannot use the recording since the same is not
admissible in evidence.
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