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MEMORANDUM

I. DEFINITION OF TERMS a. Check is a bill of exchange drawn and payable on demand. (Section 185, Negotiable Instruments Law, 2006; Philippine Legal Encyclopedia); b. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct evidence in such instance is not necessary and conspiracy may be inferred from and shown by the acts of the accused themselves during the commission of the offense. The acts point to a joint purpose and design, concerted action, and community of interest. (People vs. Lising, G.R. Nos. 106210-11, 30 January 1998, 91 SCRA 294). II. STATUTORY BASIS OF B.P. BLG. 22 2.1 Under Section 1, Batas Pambansa Blg. 22 on Checks without sufficient funds provides: Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonoured by the drawee bank for insufficiency of funds or credit or would have been dishonoured for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by fine of not less than but not more than double the amount of the check which shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. x x x The same penalty shall be imposed upon any person who, having sufficient funds in a credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonoured by the drawee bank. 2.2 Purpose of Batasang Pambansa Bilang 22: The primordial intention of the law is to ensure the stability and commercial value of checks as virtual substitutes for

currency. This legislative intent will be eroded if inquiry is allowed to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made. It is enough that the check is dishonoured under any of the circumstances provided in BP 22, to bring the case within statutory prohibition (Agpalo, The Negotiable Instrument Law, 2006); Why and to whom the check was issued is irrelevant in determining culpability. The terms and conditions surrounding the issuance of the check are also irrelevant. Criminal intent or whether the intention of the person issuing the check is good or bad is not necessary, for in acts mala prohibitum, the only inquiry is, has the law been violated? (Agpalo, The Negotiable Instrument Law, 2006); 2.3 The Section 25, Rule 123 of 1940 Rules of Court embodied the following provision: x x x Proof beyond reasonable doubt does not mean such as degree as, excluding possibility of error, produce absolute certainty. Moral certainty is required, or that degree of proof which produce conviction in an unprejudiced mind. 2.4 In this connection, Justice Johnson made a comparison between reasonable doubt and moral certainty in an early case, as follows: A reasonable doubt in criminal cases must be resolved in favour of the accused. A reasonable doubt has been variously defined. It is most difficult to define. It has been said that a reasonable doubt was the doubt of a reasonable man under all the circumstances of the case. This statement is too general and includes too much. Neither does the rule that the judge must be convinced beyond a reasonable doubt that he must be convinced to an absolute certainty. This construction would preclude a conviction based upon circumstantial evidence. Proof beyond a reasonable doubt does not mean, upon the other hand, proof beyond all possible or imaginary doubt. It means simply such proof, to the satisfaction of the court, keeping in mind the presumption of innocence, as preludes any reasonable hypothesis except that which it is given to support it. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely to be true than the contrary. It must be establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and satisfies the reason and conscience of those who are to act upon it (US v. Reyes, 3 Phil. 3, 5-6). III. ISSUE

WHETHER OR NOT THE ACCUSED WHO WAS NOT THE DRAWER OR ISSUER OF THE CHECK THAT BOUNCED BUT HIS CO-ACCUSED WIFE UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES: Art. 10 Offenses not subject of the provision of this Code Offenses which are not in the future may be punished under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. IV. DISCUSSION OF ISSUES THE ACCUSED WHO WAS NOT THE DRAWER OR ISSUER OF THE CHECK THAT BOUNCED BUT HIS CO-ACCUSED WIFE UNDER THE LATTERS ACCOUNT COULD NOT BE HELD LIABLE FOR VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR IF THE PROSECUTION FAIL TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 4.1 Article 8 of the Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit of a felony and decide to commit it. To be held guilty as a co-principal by reason of conspiracy, the accused must be shown to have performed an overt act in pursuance or furtherance of the complicity (People vs. Pickrell, 414 SCRA 19); 4.2 The overt act or acts of the accused may consist of active participation in the actual commission of the crime itself or may consist of moral assistance to his co-conspirators by moving them to execute or implement the criminal plan (People vs. Caballero, 400 SCRA 424); 4.3 In this case, the prosecution failed to prove that petitioner performed any overt act in the furtherance of the alleged conspiracy. As testified to by the lone prosecution witness, complaint Alfred Oculam, petitioner was merely present when her husband, Adronico, signed the check subject of Criminal Case No. 7068 (Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); 4.4 Conspiracy must be established, not by conjectures, but by positive and conclusive evidence (People vs. Tamayo SCRA 540, 553); 4.5 Conspiracy transcends mere companionship and mere presence at the scene of the crime does not in itself amount to conspiracy (People vs. Leano, 366 SCRA 774);

4.6 Even knowledge, acquiescence in or agreement to cooperate , is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose (People vs. Natividad, 411 SCRA 587, 595); 4.7 As the court eloquently pronounced in a recent case provides that a conspiracy is not a harmless iinuendo to be taken lightly or accepted at every turn. It is a legal concept that imputes culpability under specific circumstances; as such, it must be established as clearly as any element of the crime. Evidence to prove it must be positive and convincing, considering that it is a convenient and simplistic device by which the accused may be ensnared and kept within the penal fold (People vs. Mandao, G.R. No. 135048, December 3, 2002); 4.8 Criminal liability cannot be based on a general allegation of conspiracy, and a judgment of conviction must always be founded on the strength of the prosecution evidence. The Court rules thus in People v. Legaspi, from which we quote: At most the prosecution, realizing the weakness of its evidence against accused-appellant Franco, merely relied and pegged the latters criminal liability on its sweeping theory of conspiracy, which to us was not attendant in the commission of the crime (People v. Legaspi, G.R. No. 117802, April 27, 2000); 4.9 The rule is firmly entrenched that a judgment of conviction must be predicated on the strength of the evidence for the prosecution and not on the weakness of the evidence for the defense. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defense could be laid the responsibility for the offense charged; that only did he perpetrate the act but it amounted to a crime. What is required then is moral certainty (Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); 4.10 Verily, it is the role of the prosecution to prove the guilt of the accused beyond reasonable doubt in order to overcome the constitutional presumption of innocence(Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); 4.11 In sum, conviction must rest on hard evidence showing that the accused is guilty beyond reasonable doubt of the crime charged. In criminal cases, moral certainty not mere possibility determines the guilt or the innocence of the accused. Even when the evidence for the defense is weak, the accused must be acquitted when the prosecution has not proven guilt with the requisite quantum of proof required in all criminal cases (Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); 4.12 All told the prosecution failed to established the guilt of the accused with moral certainty. Its evidence fall short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of the accuseds innocence must be upheld and she must be acquitted

(Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); CONSPIRACY IS APPLICABLE IN VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES: ART. 10 OFFENSES NOT SUBJECT OF THE PROVISION OF THIS CODE OFFENSES WHICH ARE NOT IN THE FUTURE MAY BE PUNISHED UNDER SPECIAL LAWS ARE NOT SUBJECT TO THE PROVISIONS OF THIS CODE. THIS CODE SHALL BE SUPPLEMENTARY TO SUCH LAWS, UNLESS THE LATTER SHOULD SPECIALLY PROVIDE THE CONTRARY. 4.1.1 The first clause should be understood to mean only that the special penal laws are controlling with regard to offenses therein specifically punished. Said clause only restates the elemental rule of statutory construction that special legal provisions prevail over general ones (Bayan vs. Zamora, 342 SCRA 449, 483); 4.1.2 Lex specialis derogant. In fact, the clause can be considered as a superfluity, and could have been eliminated altogether. The second clause contains the soul of the article. The main idea and purpose of the article is embodies in the provision that the code shall be supplementary to special laws, unless the latter should specifically provide the contrary (Ladonga vs. People of the Philippines, G.R. No. 141066, February 17, 2005); 4.1.3 B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs. People, the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to B.P. 22. (Yu vs. People, G.R. No. 134172, September 20, 2004) 4.1.4 The suppletory application of the principle of conspiracy in this case is analogous to the application of the provisions on principals under Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a criminal design is shown, the act of one is the act of all conspirator, and precise extent or modality of participation of each of them becomes secondary, since all the conspirators are principals ( People vs. Felipe, 418 SCRA 146);

Submitted by: Date Submitted:

Genevieve D. Penetrante September 3, 2011