Campanilla 2017 Criminal Reviewer

July 11, 2019 | Author: mikhailmillan | Category: Conspiracy (Criminal), Insanity Defense, Crimes, Crime & Justice, Domestic Violence
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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA UP, LAW CENTER, UST, Villasis Law Center, CPRS, Ma gnificus Review, Power house

1. Generality - If the accused attacks the jurisdiction of the court because of the unique characteristic of his person (e.g. he is a foreigner, military, ambassador, President), the applicable principle is generality. If the accused attacks the jurisdiction of the court due to the unique characteristic of the place where the crime was committed (e.g. foreign vessel, embassy or high sea), the applicable principle is territoriality. a. Consular and diplomatic immunity - Consular officers are immune from criminal prosecution of acts performed in the exercise of function (1967 Convention on Consular Relation). Immunity does not cover slander (Liang vs. People, GR No. 125865, January 28, 2000), or reckless imprudence resulting in homicide for not being function-related. A Chinese diplomat, who killed another Chinese diplomat in Cebu, is immune from criminal prosecution (The Vienna Convention on Diplomatic Relations). Unlike consular officers, diplomatic agents are vested with blanket diplomatic immunity from immunity from civil and criminal suits (Minucher ( Minucher vs. Hon. CA, G.R. No. 142396, February 11, 2003). b. Presidential immunity -  The presidential immunity is subject subject the following conditions: (1) the immunity has been asserted during the period of his incumbency and tenure; and (2) the act constituting the crime is committed in the performance of his duties.This immunity will assure the exercise of presidential functions free from any hindrance, considering that the Chief Executive is a job demands undivided attention (Estrada vs. Desierto, G.R. No. 146710-15, March 2, 2001). It is submitted that a Vice-President even during his tenure could not invoke immunity from criminal prosecution for plunder on the following reasons: (1) plunder are not his official conducts as Vice-President; (2) the job of the Vice-President unlike the head of the executive department does not demands undivided attention; (3) and the implementation principal penalty of imprisonment for plunder is not inconsistent with the constitutional provision on non-removal of impeachable officer except through impeachment since he can function as Vice-President while serving sentence in prison.However, accessory penalty of disqualification, which involved removal from office, is not implementable since the enforcement thereof will offend the constitutional provision on non-removal of impeachable officer. c. Parliamentary immunity - An incumbent Senator is not immune from suit for being a protector or coddler of trading of dangerous drugs under RA No. 9165. Legislator’s immunity is confined to parliamentary privilege from arrest while the Congress is in session in all offenses punishable by not more than 6 years imprisonment and parliamentary immunity from prosecution for libel in connection with any Congressional speech or debate. 2. Territoriality  –   The ground occupied by US embassy is in fact the territory of the USA to which the premises belong through possession or ownership. A person who committed a crime within the premises of an embassy will be prosecuted under the law of Philippines because of the principle of territoriality (Reagan vs. Commission on Internal Revenue, 30 SCRA 968). b. Convention of the law of the sea - Under the Convention on the Law of the Sea, the flag state of foreign merchant vessel passing through the territorial sea of another state has jurisdiction over crimes committed therein. However, a coastal state such as the Philippines can exercise jurisdiction over any crime committed on board such ship in the following cases: (1) if its consequences extend to the coastal State; (2) if it disturbs the peace of the country or the good order of the territorial sea; (3) if the ship master or a diplomatic or consular officer of the flag State requested assistance from the local authorities; or (4) if it is for the suppression of traffic in narcotic drugs or psychotropic substances.

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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA UP, LAW CENTER, UST, Villasis Law Center, CPRS, Ma gnificus Review, Power house

Murder or serious physical injuries committed in a foreign vessel anchored in a Philippine port against a passenger thereof is within the jurisdiction of the Philippine court since this crime disturb the peace of the country. b. Regime of islands - Under the  principle of territoriality  territoriality , the court has also  jurisdiction  jurisdiction over crime committed committed in Kalayaan Islands or Scarboruogh Shoal because the Baseline Law (RA No. 9522) declares that the Philippines exercise sovereignty and  jurisdiction  jurisdiction over it. c. Bigamy - Under the  principle of territoriality  territoriality , the court has jurisdiction over concubinage involving illicit relationship maintained in the Philippines; but it has no  jurisdiction  jurisdiction over bigamy bigamy involving involving subsequent subsequent marriage marriage contracted contracted in Taiwan. Taiwan. 3. Extraterritoriality  –  Under the flag state rule , the Philippines has jurisdiction over hijacking of PAL airplane in an American territory since it its registered in the Philippines but not over murder committed in vessel registered in Panama while on high seas although it is owned by a Filipino. Under the  protective principle, the court has jurisdiction over forgery of Philippine money committed in Taiwan whether by a Filipino or an alien but not over forgery of US dollars committed therein. Under the extraterritoriality rule, the court has jurisdiction over plunder, direct bribery and falsification of document by a public officer in a Philippines consular premises stationed in America but not corruption of public officer and falsification of document committed by private individual as principal by inducement. Under the universality  principle, the court has jurisdiction over piracy committed on high seas for being a universal crime but not over murder qualified by the circumstance of taking advantage of the calamity brought about by piracy on high seas. The 12-mile territorial water of  Taiwan or Sabah may be considered considered as high seas; hence, piracy committed committed therein can be prosecuted in the Philippines (People vs. Lol-Lo and Saraw, G.R. No. L-17958, February 27, 1922). 4. Prospectivity -If - If the court in trying an accused, who committed a crime prior to the passage of the law, should give retroactive effect to the law provided that: (1) it is favorable to the accused and (2) the accused is not a habitual delinquent (Article 22 of RPC). If the law repeals a previous law or provision defining a crime, the applicable principle is not Article 22 of RPC but nullum crimen poena sine lege. Since the intention of the new law is to decriminalize an act punishable by the repealed law, the accused should be acquitted or released if the already convicted, even though he is a habitual delinquent. Reclusion perpetua, which has duration of 40 years under Article 27 of RPC and 30 years under Article 29 of RPC as amended by RA No. 10592 if the convict has undergone preventive imprisonment , is a lighter penalty than life imprisonment, which has no duration. Amendatory law, which prescribes reclusion perpetua instead of life imprisonment, shall be given a retroactive effect for being favorable to the accused (People vs. Morilla, GR No. 189833, February 5, 2014). If a child in conflict, who is a habitual delinquent, committed the crime prior to RA No. 9344, he is entitled to retroactive application thereof. Section 68 of RA No. 9344 expressly provides retroactive application of the privileges to a child in conflict with the law (Atizado vs. People, G.R. No. 173822, October 13, 2010, Bersamin) Bersamin ) without condition . On the other hand, Article 22 of the Revised Penal Code provides retroactive application of the favorable law subject to the condition of non-habitual delinquency . Since Section 68 of RA No. 9344 is a specific provision while Article 22 of the Revised Penal Code is a general provision, the latter  yields to the former. former. Generalia specialibus non derogant. derogant. Hence, the retroactive effect of RA No. 9344 is unconditional.

5. Decriminalization - RA No. 10158 has decriminalized vagrancy by omitting portions of Article 202 of RPC involving this crime. Vagrants are victims of poverty and that the law on vagrancy serves to oppress the very people that the government sought to protect. RA No. 10655 has decriminalized premature marriage by repealing Article 2|P a g e

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351 of RPC. This provision is discriminatory because it is not applicable to men. Moreover, Article 351, which was sought to prevent a possible confusion as to who is the father of the child born within the period of 301 days after the dissolution of the marriage, is not anymore necessary since paternity and filiation can now be easily determined through modern technology. 6. Repeal  – RA RA No. 10655 has repealed Article 351 of RPC on premature marriage without reenactment. This is a total repeal in which the intention of the new law is to decriminalize an act punishable of old law. Atotal repeal deprives the courts of jurisdiction to punish persons charged with a violation of the old penal law prior to its repeal (Sindiong and Pastor, 77 Phil. 1000). RA 8353 expressly repealed Article 336 of RPC on rape but re-enacted it redefining this crimeunder Article 266-A. This is a partial repealin which the intention of the new law is not to decriminalize an act punishable of old law but to introduce changes. The effect of the new law is amendatory. This partial repeal of Article 336 does not deprive the courts of  jurisdiction  jurisdiction to try and punish offender for rape committed prior to RA No. 8353 (U.S. vs. Cana, 12 Phil. 241). RA No. 8353 shall be given prospective effect since it is not favorable to the accused. 7. Mistake of fact - Authorities, who manned a checkpoint because of information that there are armed rebels on board a vehicle, have the duty to validate the information, identify them, and to make a bloodless arrest unless they were placed in real mortal danger. If they shot the suspected vehicle, which did not stop after have been flagged down and killed the occupants therein, who turned out be unarmed civilians, they are liable for multiple homicides. The mistake of fact principle is not applicable since there is negligence or bad faith on their part (Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012).  The accused shot with a firearm and killed by mistake a thief in the toilet, who turned out to be his girlfriend. Invasion of property is considered as unlawful aggression under Article 12 of the RPC because of the self-help doctrine under the Civil Code (People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983). Even though there is no actual invasion of property, unlawful aggression as an element of defense of property will be considered as present because of the mistake of fact principle. However, the means employed by him firing shots through the toilet door is not reasonable; and hence, he is only entitled to privilege migrating circumstance of incomplete defense of property (US vs. Apego, G.R. No. L-7929, November 18, 1912). 8. Proximate cause  –  Suicide  is   is not a felony within the meaning of Article 4 of RPC; hence, a pregnant woman who attempted to commit suicide is not liable for abortion due to the consequent death of the infant. Vexatious act (e.g. pouring gasoline) made as part of fun making is not felony within the contemplation of Article 4. The accused is not liable for homicide. However, such act is considered as culpable, and thus, he is liable for reckless imprudence resulting in homicide (People vs. Pugay, No 74324, November 17, 1988). Vexatious act made out of hate   (such as putting a robber snake inside the bag of the victim) is unjust vexation, which is a felony within the contemplation of Article 4. The accused is liable for homicide if the victim died due to heart attack caused by seeing a snake in his bag. a. Tetanus -  There had been an interval interval of 22 days between between the date of the stabbing and the date when victim was rushed to hospital, exhibiting symptoms of tetanus infection. Since infection is severe, he died the next day. The incubation period of severe tetanus infection is less than 14 days. Hence, he could not have been infected at the time of the stabbing since that incident occurred 22 days before the symptoms manifested. The infection was an efficient intervening cause breaking the connection between the physical injuries and death. Hence, the crime committed is physical injuries (Villacorta vs. People, G.R. No. 186412, September 7, 2011). If the victim was infected by tetanus at the time of stabbing, and the infection is the proximate cause of death , the crime committed is homicide (People vs. Cornel, G.R. No. L-204, May 16, 1947). 3|P a g e

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b. Offense punishable under special law - Practicing medicine without license is an offense punishable under special law but not afelony within the meaning of Article 4 of RPC. Hence, a quack doctor, who killed his patient while treating him, is only liable for reckless imprudence resulting in homicide (People vs. Carmen, G.R. No. 137268, March 26, 2001). If the victim accidentally killed is the owner, driver or occupant  of   of the carnapped motor vehicle, the crime committed is qualified carnapping or carnapping in the aggravated form under Section 3 of RA No. 10883. If the victim accidentally killed is not the owner, driver or occupant  of  of the carnapped motor vehicle, the crimes committed are simple carnapping and homicide. The concept of carnapping c arnapping is the same as that of theft and robbery (People vs. Sia, G.R. No. 137457, Nov. 21, 2001). Although not punishable under RPC, it can be treated as a felony within the meaning of Article 4 of RPC (See: Dimat vs. People, G.R. No. 181184, January 25, 2012). Hence, the accused is liable for homicide, which is the direct and natural consequence of simple carnapping. c. Evident premeditation - In case of aberatiu ictus and error in personae, the SC did not appreciate evident premeditation since the victim, who was actually killed, is not contemplated in the premeditation of the accused (People vs. Trinidad, G.R. NO. L-38930, June 28, 1988; People vs. Mabug-at, 51 Phil., 967). However, praeter intentionem and evident premeditation can be independently appreciated. there is no incompatibility between evident premeditation and no intention to commit so grave a wrong since the latter is based on the state of mind of the offender while the former manner of committing the crime (Reyes; People vs. Enriquez, 58 Phil. 536). d. Treachery - If accused employed means to render the victim defenseless, treachery shall be appreciated even if the killing is due to error in personae (People vs. Del Castillo, Sr., G.R. No. L-32995, April 30, 1984) or aberratio ictus (People vs. Mabug-at, G.R. No. 25459, August 10, 1926, En Banc) or with the circumstance of praeter intentionem (People vs. Cagoco, G.R. No. 38511, October 6, 1933) e. Sense of danger - If a person in committing threat, murder, rape or robbery creates in the mind of the victim an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the resulting injuries or death (US vs. Valdez, G.R. No. 16486, March 22, 1921; People vs. Toling, G.R. No. L-27097, January 17, 1975; People vs. Castromero, G.R. No. 118992, October 9, 1997; People vs. Arpa, G.R. No. L-26789, April 25, 1969). 9. Impossible crime -  The crime committed is impossible impossible crime if the offense sought to be committed is factually or legally impossible. Killing a dead person is impossible crime because of legal impossibility. Putting the hand inside an empty pocket with intention to steal a wallet is impossible crime because of factual impossibility (Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992). Kidnapping for ransom consummates at the precise moment when the victim was abducted. Receiving ransom payment is not an element of this crime. What is important is that the victim was kidnapped  for purpose of ransom. Since the crime is already consummated, there is no basis to say that it is impossible to commit this crime (People vs. Tan, G.R. No. 95322, March 1, 1993). Moreover, kidnapping is a crime against liberty and not against person or property. Firing a gun   at the unoccupied bedroom with intention to kill a victim constitutes impossible crime because it is factually impossible to kill a victim, who was not in the bedroom (Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992). But throwing grenade   at the unoccupied bedroom, where the victim is 4|P a g e

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supposed to be sleeping, constitutes arson if the bedroom was burned as a consequence. “A” discharged shotgun at “B” from a distance of 300 yards; but because of the limited range of the firepower of the shotgun, sh otgun, it would be impossible for “A” to harm “B”. “A” is liable of discharge of firearm and not impossible crime. Where the offender unlawful entered the house and took a watch that turned out to be his own, he is liable for trespass to dwelling and not impossible crime (Criminal Law Conspectus by  Justice Florenz Regalado). Regalado). If the accused accused administered administered abortive drugs upon his girlfriend whom he believed to be pregnant, which turned out not to be true, but the woman became ill for more than 30 days, the accused will be liable for serious physical injuries and not impossible crime of abortion (Criminal Law Reviewer by Gregorio). a. Gender crime - Gender is an element of all crimes against chastity except acts of lasciviousness. In seduction and consented acts of lasciviousness, and abduction, the offender must be a man, while the victim must be a woman. The offender in adultery must be a married woman, while in concubinage a married man. If the element of gender is not present in a crime against chastity, it is impossible to commit this crime (e.g. it is impossible to commit abduction against a person, who is gay). Despite the impossibility of its commission, the accused is not liable for impossible crime. To be held liable for impossible crime, the act which is impossible to commit must constitutes crime against person or property.However, abduction is a crime against chastity. But the accused may be held liable for illegal detention. A person, who has sexual intercourse with a woman not knowing that she was already dead,is liable for impossible crime since rape is now a crime against person. However, if he is aware that the woman is already dead, he is not liable for impossible crime since criminal intent or propensity to rape, which is the basis of penalizing impossible crime, is wanting. If the gender element in rape through sexual intercourse is not present, the offender is not liable for impossible crime. Although it is impossible to commit rape through sexual intercourse where the victim is a gay, such acts constitute acts of lasciviousness. b. Unfunded check - If the check is unfunded, stealing the checkand presenting it for payment with the bank constitute impossible crime. It is factually impossible to accomplish the crime of qualified theft since the check is unfunded(Jacinto vs. People, G.R. No. 162540, July 13, 2009). If the check is  funded , stealing the check and presenting it for payment with the bank is not impossible crime. Even if the accused failed to encash the same due to external cause such as apprehension by police or stop payment , he will be held liable for consummated theft. In theft, taking property with intent to gain consummates the crime. Actual gain is not an element thereof. Thus, failure to gain will not prevent the consummation of the crime (See: People vs. Seranilla, G.R. No. L-54090, May 9, 1988); 10. Indeterminate offense offense  - Climbing on top of the naked victim, touching her genitalia and mashing her breastsaresusceptible of double interpretation (People v. Lamahang). His intention is either to rape or seduce her. Hence, the accused cannot be held liable for attempted rape because intent to have sex is not clear. He is only liable for acts of lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin). Bersamin ). Inflicting non-mortal wound upon the victim by shooting him constitutes physical injuries if the accused did not further shoot him to inflict mortal wounds. The crime is not attempted homicide because failure to shoot him further shows lack of intent to kill. Moreover, spontaneous desistance from further shooting to victim to inflict mortal wounds is a defense in attempted homicide (Pentecostes, Jr. vs. People, GR No. 167766, April 7, 2010). But inflicting mortal wound upon the victim 5|P a g e

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constitutes frustrated homicide (De Guzman vs. People, G.R. No. 178512, November 26, 2014, Bersamin) even if the accused desisted from further shooting him. The fact that the wounds are mortal indicates intent to kill. Moreover, spontaneous desistance from further shooting is not a defense in frustrated homicide (People vs. Abella, G.R. No. 198400, October 07, 2013). 11. Self-defense - Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot (Rustia vs. People, G.R. No. 208351, October 05, 2016, Bersamin). 12. Battered woman syndrome - The essence of this defense of “Battered Woman Syndrome ” as a defense is that battered woman, who suffers from physical and psychological or emotional distress, is acting under an irresistible impulse to defend herself   although at the time of commission of the crime the battererhad not yet committed unlawful aggression. That is why “Battered Woman Syndrome ” is a defense notwithstanding the absence of any of the elements for justifying circumstances of self-defense such as unlawful aggression (Section 26 of RA No. 9262). This Syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Section 3).  The three phases of the Battered Woman Syndrome are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving or non-violent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004). The basis of the irresistible impulse to make a defense against the batterer is the woman’s experiencing two battering episodes.  The elements of Battered Woman Syndrome as a defense are as follows: (1) the woman is subjected to cumulative abuse by the victim, with whom she has marital, sexual or dating relationship; and (2) the cumulative abuse or battery is the act of inflicting physical harm resulting to physical and psychological or emotional distress. Since the abuse must be cumulative, there must be at least two episodes involving the infliction of physical harm. If the first episode is infliction of physical harm and the second episode is verbal abuse, the accused cannot avail Battered Woman Syndrome as a defense. 13. Imbecility and minority  –  Mental retardation includes (a) idiot, whose mental age is two-year old ; (b) imbecile, whose mental age is seven-year old ; (c) moron or feebleminded, whose mental age is twelve-year old and (d) borderline intelligence (People vs. Butiong, G.R. No. 168932, October 19, 2011 Bersamin; People vs. Bayrante, G.R. No. 188978, June 13, 2012). In rape, there is a difference between actual age and mental age. In statutory rape, the actual age of the victim must be under 12 years old. In rape against a person deprived of reason, the mental age of the victim is 2 years old (idiot), 7 years old (imbecile), 12 years old (feebleminded) or above 12 years old but suffering from borderline intelligence (People vs. Butiong, supra; People vs. Bayrante, supra). In exempting circumstance, there is a difference between actual age and mental age. In exempting circumstance of imbecility, what is important is the mental age of the accused. An idiot, whose mental age is 2 years, and imbecile, whose mental 6|P a g e

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age is 7 years old (People vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin) are exempt from criminal liability. A feebleminded, whose mental age is 12 years old, is not exempt from criminal liability since he is not an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to mitigating circumstance of mental illness (People vs. Formigones, G.R. No. L-3246, November 29, 1950). In exempting circumstance of minority under Section 6 of RA No. 9344, what is important is the chronological or actual age of the accused. If the actual age of the accused is 18 years old and mental age is 9 years old, the exempting circumstance of minority and imbecility shall not be appreciated (People vs. Roxas, G.R. No. 200793, June 04, 2014). Under Section 5 (b) of RA No 7610, when the child subjected to sexual abuse is under 12 years of age, the perpetrators shall be prosecuted for rape and acts of lasciviousness under RPC. For purpose of Section 5 (b), there is no difference between actual age and mental age. Hence, the victim whose actual age is 12 years old but her mental age is 9 years old, is considered as a victim under 12 year of age within the contemplation of Section 5 (b) (People vs. Pusing, G.R. No. 208009, July 11, 2016), 14. Insanity -  The presumption, under Article 800 of the Civil Code, is that every human is sane. Anyone who pleads the exempting circumstance of insanity bears the burden of proving it with clear and convincing evidence (People vs. Tibon, G.R. No. 188320, June 29, 2010). There are two tests (People vs. Formigones, G.R. No. L-3246, November 29, 1950) to determine whether the mental condition of the accused is exempting or mitigating: a. Test of cognition  –   Under the test of cognition, the mental condition of the accused is an exempting circumstance of insanity if there was a complete   deprivation of intelligence in committing the criminal act (People vs. Bulagao, G.R. No. 184757, October 05, 2011); or mitigating circumstance of mental illness if there was only a  partial   deprivation of intelligence (People vs. Puno, G.R. No. L- 33211, June 29, 1981). After satisfying his lust, accused threatened the victim. This implies that accused knew what he was doing, that it was wrong, and wanted to keep it a secret. It also indicated that the crime was committed during one of his lucid intervals. Accused is not exempt from liability for failure to pass the cognition test (People vs. Alipio, G.R. No. 185285, October 5. 2009). b. Test of volition  –   Under the test of volition, the mental condition of the accused is a mitigating circumstance of mental illness if there is complete or partial  deprivation of freedom. In sum, if a sex maniac or homicidal maniac had merely passed the volition test but not the cognition test, he will only be given the benefit of mitigating circumstance of illness. Diminution of freedom is enough to mitigate the liability of the offender suffering from illness (See: People vs. Rafanan, Jr. November 21, 1991, G.R. No. 54135, November 21, 1991). Thus, kleptomania is a mitigating circumstance of mental illness. Irresistible homicidal impulse in People vs. Bonoan G.R. No. 45130, February 17, 1937, which is an exempting circumstance is not anymore controlling. Irresistible homicidal impulse, which is based on the volition test, is only a mitigating circumstance. To exempt a person from criminal liability due to insanity, the controlling rule is cognition test and not the volition test (People vs. Opuran, G.R. Nos. 147674-75, March 17, 2004). In several Supreme Court cases, the pleas of insanity of accused who are suffering from schizophrenia or psychosis were rejected because of failure to pass the cognition test . (People vs. Medina, G.R. No. 113691, February 6, 1998; People vs. Pascual, G.R. No. 95029, March 24, 1993). 15. Child in conflict with the law -The rights and privileges of a child in conflict with the law are as follows: 1. If the accused is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively 7|P a g e

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presumed. If the child is above 15 years of age, minority is an exempting circumstance if he acted without discernment, or privilege mitigating circumstance if he acted with discernment. This privilege mitigating circumstance shall be appreciated even if minority was not proved during the trial and that his birth certificate was belatedly presented on appeal (People vs. Agacer, G.R. No. 177751, January 7, 2013) and even if the penalty is reclusion perpetua to death (People vs. Ancajas, G.R. No. 199270, October 21, 2015). 2. Ifthe accused is 15 years of age or below but above 12 years , shallbe considered as a neglected child. Neglected child shall be mandatorily placed in a youth care facility or Bahay Pag-asa   in the following instances: (a) If the child commits serious crimes such as parricide, murder, infanticide, rape, kidnapping and serious illegal detention with homicide or rape, robbery with homicide or rape, destructive arson, or carnapping where the driver or occupant is killed or raped or offenses involving dangerous drugs punishable by more than 12 years of imprisonment; and (b) In case of repetition of offenses and the child was previously subjected to a intervention program and his best interest requires involuntarily commitment. In case of commission of serious crime , a petition for involuntarily commitment shall be filed by social worker in court. In case of repetitionof offenses , his parents or guardians shall execute a written authorization for the voluntary commitment. However, if the child has no parents or guardians or if they refuse or fail to execute such authorization, the proper petition for involuntary commitment shall be immediately filed social worker in court; but the child may be subjected to intensive intervention program supervised by the local social officer instead of involuntary commitment (Section 20-A and 20-B of RA 9344 as amended by RA 10630). 3. If the child is found guilty, the court shall place him under suspended sentence, without need of application instead of pronouncing judgment of conviction (Section 38 of RA 9344). The law makes no distinction as to the nature of offense by the child. The Senate debate discloses that the suspension is applicable to heinous crime (People vs. Jacinto, G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015). An accused, who is under 18 years of age at the time of the commission of the crime, is a child in conflict with the law. He will not be deprived of privileges under the law even though he reaches age of majority at time of rendition of judgment. Exception : While Section 38 of RA 9344 provides suspension of sentence can still be applied even if the child is already 18 years of age at the time of conviction. However, Section 40 limits the suspension of sentence until the child reaches the age of 21 (People vs. Gambao, GR No. 172707, October 01, 2013; People vs. Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No. 176102, November 26, 2014, Bersamin). 3. If the accused is an adult, application for probation must be filed within the period of perfecting an appeal (Section 4 of PD No. 968 or Probation Law). However, the accused is a child in conflict with the law, application for probation may be filed at any time (Section 42 of RA No. 9344). In sum, it can be filed even beyond the period of perfecting an appeal or even during the pendency of an appeal. Under Section 9 of PD 968, one, who is sentenced to suffer a penalty (or maximum indeterminate penalty) of more than 6 years, is not qualified to apply for probation. However, under Section 70 of RA No. 9165, a first time minor offender   can apply for probation for the crime of  possession or use   of dangerous drug even if the penalty is higher than 6 years of imprisonment. But Section 70 of RA 9165 is not applicable sale of dangerous drugs. Section 24 of RA No. 9165 disqualifies drug traffickers and pushers for applying for probations although the accused is a minor.  The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators (Padua vs. People, G.R. No. 168546, July 23, 2008). 8|P a g e

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4. The child in conflict with the law may, after conviction and upon order of the court, be made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities in accordance with Section 51 of RA No. 9344 (People vs. Arpon, G.R. No. 183563, December 14, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No. 176102, November 26, 2014, Bersamin). 5. A convict is entitled to a full or 4/5 credit of his preventive imprisonment (Article 29 of RPC). However, if the convict is a child in conflict with the law, he shall be credited in the services of his sentence the  full time spent   in actual commitment and detention (Section 41, RA 9344; Atizado vs. People, G.R. No. 173822, October 13, 2010, Bersamin). 16. Status offense  –   Status offenses such as curfew violationrefers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts (Section 3 of RA No. 9344). In sum, a status offense is a crime where minority of the offender is an element. A child shall not be punished for committing a status offense (Section 57). Under Section 57-A, local ordinances on status offenses shall be for the protection of children. For committing status offense, children recorded as a child at risk   shall be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents instead of being penalized. 17. Exempting circumstance of relationship -  The absolutory cause of relationship under Article 332 of RPCapplies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification. It includes step-relationship   and in-laws relationship.There are two viewson whether death of his wife dissolves the relationship by affinity of the husband with his motherin-law for purpose of absolutory cause. The first holds that relationship by affinity terminates after the death of the deceased spouse, while the second maintains that relationship continues. The principle of pro reo calls for the adoption of the continuing affinity view because it is more favorable to the accused (Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). The term “spouses” in Article 332 embraces common-law spouses. The basis of this ruling is the rule on co-ownership over properties by common-law spouses (People vs. Constantino, No. 01897-CR, September 6, 1963, 60 O.G. 3603). 18. Voluntary confession - A plea of guilty made after the prosecution had begun presenting its evidence cannot be considered voluntary since it was made only after the accused realized that the evidence already presented by the prosecution is enough to cause his conviction (People vs. Montinola, G.R. No. 131856-57, July 9, 2001) . 19. Allegation of aggravating circumstances - It is now a requirement that the aggravating or qualifying circumstances be expressly and specifically alleged in the complaint or information. Otherwise, they cannot be considered by the trial court in its judgment, even, if they are subsequently proved during trial (Sombilon, Jr. vs. People, G.R. No. 175528, September 30, 2009). This procedural rule has a retroactive application because of  pre reo   (People vs. Dadulla, G. R. No. 172321, February 9, 2011, Bersamin). 20. Nighttime - Nighttime is aggravating if the accused took advantage of the darkness of the night (People vs. Banhaon, G.R. No. 131117, June 15, 2004) or silence of the night e.g. the accused take advantage of the fact that the victims and neighbors were sleeping (People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004). 21. Band - In robbery, band is a special aggravating circumstance under Article 295 of RPC. In robbery with homicide or rape, band is an ordinary aggravating circumstance under Article 14. 9|P a g e

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22. Exploitation of minor  –   The special aggravating circumstance of exploitation of minor under RA No. 9344is present if the accused makes use, takes advantage of, or profits from the use of children, or abuses his authority over the child or takes advantage of the vulnerabilities of the child with abuse of confidence or induce, threaten or instigate the commission of the crime. The concept of exploitation of children is comprehensive enough to cover the circumstance of with the aid of minor under 15 years of age under RPC. 23. Conspiracy - It is immaterial whether appellant acted as a principal or as an accomplice because the conspiracy and his participation therein have been established. In conspiracy, the act of one is the act of all and the conspirators shall be held equally liable for the crime (People vs. Siongco, G.R. No. 186472, July 5, 2010). a. Disassociation -  To exempt himself from criminal liability, a conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to commit the felony and prevent the commission thereof (People vs. Ebet, G.R. No. 181635 November 15, 2010). A conspirator, who ran away from the scene of the crime prior to the commission of robbery with homicide by his co-conspirator, is not liable because the former dissociated himself from the conspiracy. Conspirators are all liable for robbery although not all profited and gained from the robbery. When a conspirator committed homicide by reason of or on the occasion of the robbery, his co-conspirators are liable for special complex crime of robbery with homicide, unless they endeavored to prevent the killing (People vs. Ebet, GR No. 181635, November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Diu, GR No. 201449, April 03, 2013) or they cannot prevent the killing since they are not aware thereof (People vs. Corbes, G.R. No. 113470, March 26, 1997). This rule is applicable to special complex crime of kidnapping with rape (People vs. Anticamaray, GR No. 178771, June 08, 2011) or robbery with rape (People v. Suyu, G.R. No. 170191, August 16, 2006; People v. Canturia, G.R. No. 108490 June 22, 1995). b. Multiple rapes - If there is conspiracy to commit rape, each of conspirators is responsible not only for the rape committed personally by him but also for the rape committed by the other as well (People vs. Lascano, G.R. No. 192180, March 21, 2012). c. Offense under special law - B.P. Blg. 22 does not expressly proscribe the supplementary application of the provisions RPC including the rule on conspiracy. Hence, such rule may be applied supplementarily. Thus, a non-issuer of bum check can be held liable for violation of BP Blg. 22 on the basis of conspiracy. (Ladonga vs. People, G.R. No. 141066, February 17, 2005). The principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as mother-in-law), who has no marital, sexual or dating relationship with the victim, can be held liable for violence against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852, September 30, 2008) 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, died, 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 between the dead public officer and private individual, the latter can still be convicted of violation of RA No. 3019 (People vs. Go, GR NO. 168539, March 25, 2014). However, if 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). 10 | P a g e

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Mayor, treasurer and planning coordinator approved the overpayments in favor of a private individual for the construction of public market. The public officers caused undue injury to the government through manifest partiality and evident bad faith in violation of Section 3 (e) of RA No. 3019. The private individual, who was overpaid, is also liable on the basis of conspiracy and Go vs. Fifth Division of the Sandiganbayan (Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010; Uyboco vs. People, G.R. No. 211703, December 10, 2014). 24. Accomplice - Lending weapon such a gun to a killer for purpose of killing a specific person such as Pedro is an act of accomplice. But if the killer used the weapon in killing a different person such as Juan , the lender is not liable as an accomplice. To be held liable as an accomplice, it is important that that he knows and concurs in the criminal design of the principal (community of design) and participates before or during the commission of the crime by supplying moral or material aid in an efficacious way. In this case, the lender concurred in the killing of Pedro but not Juan. Hence, he is not liable as an accomplice. If the killer used another weapon such as knife instead of the gun borrowed in killing Pedro, the lender is not liable as an accomplice. Although the lender concurred in the killing of Pedro, he did not supply the killer material or moral aid in an efficacious way since the weapon used is not the one borrowed from him. 25. Fencing  –  In fencing, the property, which the accused possesses with intent to gain, must be derived from the proceeds of theft or robbery (Ong vs. People, GR No. 190475, April 10, 2013). The concept of carnapping is the same as that of theft or robbery (People vs. Sia, G.R. No. 137457, November 21, 2001). Thus, carnapping can be considered as within the contemplation of the word “theft” or “robbery” in PD No. 1612 (Dimat vs. People, G.R. No. 181184, January 25, 2012). If the property is derived from the proceeds of malversation or estafa, fencing is not committed. But the accused can be held liable as an accessory if he profited or assisted other to profit from this misappropriated property. Actual knowledge that the property is stolen is not required. Fencing is committed is the accused should have known   that the property is stolen taken into consideration the attending circumstances such as (1) the price of the property is so cheap; (2) expensive jewelry is being offered for sale at midnight in a street; (3) accused knew that the car he bought was not properly documented (Dimat vs. People, supra); or (4) new tires are being peddled in the streets by an unknown seller (Ong vs. People, supra). Furthermore, mere possession of stolen property shall be prima facie evidence of fencing (Section 6 of PD No. 1612). 26. Obstruction of justice  –  Obstruction of justice can only be committed by a person other than the one being investigated or tried in a criminal proceeding. Although this is not expressly required in PD No. 1829 to make one liable for obstruction of justice, a principal himself cannot be held liable for obstruction of  justice (Angeles vs. Gaite, G.R No. 165276, November 25, 2009).  The criminal actor, who threwthe body of murdered victim into the river to destroy the corpus delicti, is liable for murder qualified by the circumstance of employment of means to afford impunity.The one who assisted in in throwing the body is liable as an accessory to murder for destroying the body of the crime to prevent its discovery (People vs. Devaras, G.R. Nos. 100938-39, December 15, 1993) or   a principal in the crime of obstruction of justice for destroying it to impair its availability as evidence in a criminal proceeding.  The accused cannot be prosecuted both as an accessory for murder and  as principal for obstruction of justice. The penalty prescribed for obstruction of justice under PD No. 1829 is prision correccional in its maximum period unless other law prescribed a higher penalty. Thus, the offender may be prosecuted for murder as accessory with the penalty of prision mayor or for obstruction of justice as principal 11 | P a g e

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also with the penalty of prision mayor, since this penalty is higher than that prescribed under PD No. 1829. The intention of the law in prescribing a fixed penalty or that provided by other law such as RPC, whichever is higher, is not to prosecute the offender for obstruction of justice and for other crime arising from the same act such as destroying the body of the crime. After the discovery of illegal possession of lumber, the accused unlawfully took the truckused to commit the crime from the authorities. He is not liable as an accessory since he did not conceal the instrument of the crime for the purpose of preventing the discovery thereof . Crime was already discovered when the concealment was made. However, he is liable for obstruction of justice for concealing the truck to impair its availability as evidence   in the criminal proceeding for illegal possession of lumber (Padiernos vs. People, G.R. No. 181111, August 17, 2015).  To be held liable as an accessory, the person harbored, concealed, or assisted to escape must be  principal   of the crime and the crime committed must be treason,  parricide, murder,or an attempt to take the life of the Chief Executive , or other crime where act was committed with abuse of public function or the principal is a habitual delinquent. To be held liable as a principal in obstruction of justice, the one harbored, concealed, or assisted to escape is any person (such as principal or accomplice)and the crime committed is “any offense under existing law.”  The exempting circumstance of relationship under Article 20 of RPC can be appreciated in favor of an accessory to a felony but not in favor of an accused in the crime of obstruction of justice since he is being prosecuted as principal and not as an accessory. Light felony is punishable except when the accused is merely an accessory (Article 16 of RPC) or when it is at the attempted or frustrated stage unless it is a crime against property or person (Article 7). However, obstruction of justice can be committed even though the crime under investigation is a light felony. An accused can be convicted as an accessory to a felony although the principal was not convicted because the latter was at large, unidentified or dead (Vino vs. People, G.R. No. 84163, October 19, 1989). The corresponding responsibilities of the principal, accomplice, and accessory are distinct from each other. As long as the commission of the offense can be duly established in evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal (People vs. Bayabos, G.R. No. 171222, February 18, 2015). 27. Credit of preventive imprisonment  – Credit for preventive imprisonment is full if the detention prisoner executed detainee’s manifestation, which is a written declaration of a detained prisoner, with the assistant of a counsel, stating his willingness to abide by the same disciplinary rules imposed upon a convicted prisoner for the purpose of availing the full credit of the period of his preventive imprisonment. Credit for preventive imprisonment is 4/5 if the detention prisoner executed detainee’s waiver, which is a written declaration of a detained prisoner, with the assistant of a counsel, stating his refusal to abide by the same disciplinary rules imposed upon a prisoner convicted by final judgment.  There is no credit if the accused is recidivist; has been convicted previously twice or more times of any crime; or has failed to surrender voluntarily before a court of law upon being summoned for the execution of his sentence (Article 29 of RPC as amended by RA No. 10592). If the offender is a child, the applicable rule for crediting the period of commitment and detention is not Article 29 of RPC but Section 41, RA 9344, which provides that the full time spent in actual commitment and detention of juvenile delinquent shall be credited in the services of his sentence. 12 | P a g e

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28. Immediate release  –  If the period of preventive imprisonment is equal to the imposable maximum imprisonment of the offense charged, the detention prisoner shall be released immediately without prejudice to the continuation of the case, except for the following: 1) recidivist; 2) habitual delinquent; 3) escapee; and 4) person charged with heinous crimes. Such period shall include good conduct time allowance   (Article 29 of RPC as amended by RA No. 10592). 29. Special time allowance for loyalty (STAL)  – If detention prisoner or convicted prisoner escapes during the calamity, and subsequently surrenders within 48 hours from the time the President announces the passing away of such calamity, he is entitled to 1/5 special time allowance for loyalty (STAL) under Article 98 of RPC as amended by RA No. 10592; if the convicted prisoner   did not surrender within the period, he is liable for evasion of sentence under Article 158 of RPC punishable by penalty equivalent to one-fifth of the time still remaining to be served under the original sentence, which in no case shall exceed six months; if the detention prisoner did not surrender within the period, he is not liable for evasion of sentence. Only convicted prisoner can commit evasion of service of sentence because a detention prisoner is not serving sentence, which he can evade. In case of the prisoner chose to stay in the place of his confinement notwithstanding the existence of a calamity, he is entitled to 2/5 STAL (Article 98 of RPC as amended by RA No. 10592). A prisoner who did not escape despite of the calamity manifests a higher degree of loyalty to the penal system than those who evaded their sentence but thereafter gives themselves up upon the passing away of the calamity. Hence, prisoners, who did not escape, are entitled to a higher special time allowance. However, prisoner is not entitled to STAL if he has committed other offense or any act in violation of the law. 30. Special complex crime  – Raping the victim or inserting instrument in her anal orifice after treacherously inflicting mortal wounds is not a special complex crime of rape with homicide because the original design of the victim is kill and not to rape the victim. The crime committed is murder qualified by treachery and rape shall be regarded either as ignominy  or cruelty (People vs. Laspardas, G.R. No. L-46146, Oct. 23, 1979) or sexual assault shall be treated as cruelty (People vs. Bernabe, G.R. No. 185726, October 16, 2009). a. Special rule for kidnapping with homicide - Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the accused is liable for a special complex crime of kidnapping with homicide (People vs. Mercado, G.R. No. 116239, November 29, 2000; People vs. Ramos, G.R. No. 118570, October 12, 1998; People vs. Larranaga, 138874-75, February 3, 2004; People vs. Montanir, GR No. 187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949, July 23, 2014). However, if the derivation of liberty is just incidental  to the transportation of the victim to the place where he will be executed, the crime is murder. Kidnapping with homicide is not committed because of lack of intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655, July 22, 2009). b. Doctrine of absorption - In robbery with homicide, all other felonies such as rape, intentional mutilation, usurpation of authority, or direct assault with attempted homicide are integrated into this special complex crime. This special complex crime is committed as long as death results by reason or on occasion or robbery without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime(People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016).

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c. Homicide component - In robbery with homicide, it is immaterial that the victim of homicide is a bystander (People vs. Barut, G.R. No. L-42666 March 13, 1979), a responding police (People vs. Pelagio, G.R. No. L-16177, May 24, 1967) or one of the robbers (People vs. De Leon, GR No. 179943, June 26, 2009;People vs. Jugueta, G.R. No. 202124, April 05, 2016).  The phrase “by reason of the rape”  obviously conveys the notion that the killing is due to   the rape, which is the crime the offender originally designed to commit. The victim of the rape is also the victim of the killing. In contrast, the phrase “ on the occasion of the rape” as shown by Senate deliberations refers to a killing that occurs immediately before  or after ,or during the commission itself of the rape, where the victim of the homicide may be a person other than the rape victim (People vs. Villaflores, G.R. No. 184926, April 11, 2012, Bersamin; People vs. Laog, G.R. No. 178321, October 5, 2011). In robbery with homicide, it is immaterial that victim is killed by the responding police and not by the robber (People vs. Ombao, G.R. No. L-30492, February 26, 1981). But in attempted robbery with homicide, the offender must be guilty of both crimes. Hence, attempted robbery with homicide is not committed where the victim was killed by a co-passenger and not by the robber (People vs. Manalili, G.R. No. 121671, August 14, 1998). Ordinarily, homicide means killing another person. In sum, the person responsible for the death of the victim must be the offender. But in the case of People vs. Arpa, G.R. No. L-26789, April 25, 1969, the victim himself, who jumped from boat, is responsible for his own death, and yet, the SC convicted the accused of robbery with homicide. In other words, death caused by the victim himself is considered as homicide, which is a component of robbery with homicide. Hence, suicide or death caused by the victim herself can be considered as homicide as a component of special complex crime of rape with homicide. d. Violence or intimidation in taking the property - If the taking of property is not committed by means of violence or intimidation, Article 294 of RPC is not applicable. Taking without violence or intimidation constitutes theft. If after the taking of property by means of violence or intimidation, the robber killed a responding police officer, the former is liable for robbery with homicide (People vs. Pelagio, G.R. No. L16177, May 24, 1967). If after the taking of the roasters without violence or intimidation, the thief killed responding police officer, he is liable for theft and direct assault with homicide (People vs. Jaranilla, G.R. No. L-28547, February 22, 1974). If after the snatching of the complainant’s bag without violence or intimidation, a corobber crashed the getaway motorcycle and died, the accused is only liable for theft (People vs. Concepcion, G.R. No. 200922, July 18, 2012). e. Direct connection - After consummation of robbery, passengers reported the matter to the police authorities. During the manhunt operation, one of the police officers was killed by a robbery. The crime committed is not robbery with homicide since the connection between the two crimes was “not a direct connection " (People vs. Quemeggen, G.R. No. 178205, July 27, 2009). f. Occupation of real property - In simple robbery under Article 294 of RPC, violence and intimidation is employed to take property. In occupation of real property under Article 312, violence or intimidation is employed to occupy the real property. If the accused has already occupied the house of the complainant, and he used violence or intimidation to prevent the said owner from reoccupying the property, the crime committed is not occupation of real property. The accused may be held liable of grave threat, grave coercion or discharge of firearm depending upon the circumstance of the case. g. Robbery by using force upon thing - Breaking the window of a house and taking property inside without entering constitutes theft. Breaking the window is not a 14 | P a g e

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circumstance that will qualify the taking into robbery by using force upon thins since this crime requires that the breaking of window is a means to enter the building (People vs. Adorno, CA 40 O.G. 567; People vs. Jaranilla. G.R. No. L-28547, February 22, 1974). Breaking the window to commit theft is an ordinary aggravating circumstance. Using picklock to open a locked cabinet and taking property therein is not robbery by using force upon thing. To constitute robbery by using force upon thing, the picklock must be used to open the building and not merely a lockedfurniture (US vs. Macamay, G.R. No. 11952, September 25, 1917). Entrusted key is not a false key in robbery by using force upon thing. h. Complex crime of two robberies - In Sebastian   case, when the elements of both  robbery by means of violence and intimidation and robbery by using force upon thing are present, the accused shall be held liable of the former since the controlling qualification is the violence and intimidation. 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. Since Sebastian   principle defies logic and reason, People vs. Napolis, G.R. No. L-28865, February 28, 1972 abandoned it. Under the present rule, when the elements of both  robbery by 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 (People vs. Disney, G.R. No. L-41336, February 18, 1983; Fransdilla vs. People, GR No. 197562, April 20, 2015, Bersamin). If the entry into the dwelling is without force upon thing , and the property was taken by means of violence or intimidation, the crime committed is robbery by means of violence or intimidation with aggravating circumstance of disregard of dwelling (People vs. Tejero, G.R. No. 128892 June 21, 1999; People vs. Evangelio, G.R. No. 181902, August 31, 2011). When the elements of both robbery   with homicide   and robbery by using force upon thing (unlawful entry) are present, the former shall absorb the latter. In sum, robbery by using force upon thing committed on occasion of robbery by means of violence or intimidation shall be integrated into the special complex crime of robbery with homicide (People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016). But aggravating circumstances of disregard of dwelling and unlawful entry shall be both appreciated (People vs. Lamosa, G.R. No. 74291-93, May 23, 1989). 31. Compound crime -  The single act of rolling the hand grenade on the floor of the gymnasium which resulted in the death of victims constituted a compound crime of multiple murders (People vs. Mores, GR No. 189846, June 26, 2013). Wherethe use of grenade render the victim defenseless, “use of explosives” shall be considered as a qualifying circumstance because this is the principal mode of attack.  Thus, treachery will be relegated merely as a generic aggravating circumstance (People vs. Comadre, et al., G.R. No. 153559, June 8, 2004). The single act of running over the victims with a van constitutes compound crime of multiple murders (People vs. Punzalan, Jr., G.R. No. 199892, December 10, 2012). a. Single act treated as several acts - Single act of pressing the trigger of  Thompson or armalite is treated as several acts as many as there are bullets fired from gun. Because of special mechanism of Thompson, the single act of pressing its trigger will cause the continuous firing of bullets. Thus, accused is liable as many homicides as there are victims (People vs. Desierto, (C.A.) 45 O.G. 4542; People vs. Sanchez, G.R. No. 131116, August, 27, 1999; People vs. Tabaco, G.R. Nos. 100382-100385 March 19, 1997; People v. Vargas, Jr., G.R. No. 86728, April 6, 1990; People vs. Bermas, G.R. Nos. 76416 and 94312 July 5, 1999). b. Variance rule -  The body of the information charged the accused of compound crime with murder and attempted murder since two victims were hit by a single shot. The evidence shows that murder and attempted murder are separate crimes since the two victims were hit by several shot. Under the variance rule, if the 15 | P a g e

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crime alleged in the information varies with the crime proven with evidence, the accused shall be convicted of the crime alleged or proven whichever the lesser. Thus, accused shall be convicted of complex crime, which is lesser compared to two crimes (People vs. Bernardo, GR No. 198789, June 03, 2013). c. Several acts - Several acts   in killing several victims do not constitute a compound crime. Article 48 requires a single act constituting two or more crimes (People vs. Toling, G.R. No. L-27097, January 17, 1975). Exceptions: Several acts  in killing several victims under a single criminal impulse   (People vs. Lawas, L-7618-20,  June 30, 1955) or under single criminal purpose   (People vs. Abella, G.R. No. L-32205 August 31, 1979) shall be considered as a single act. Hence, it is a compound crime.  The “single criminal impulse rule ” under the Lawas doctrine is more of an exception than the general rule (People vs. Remollino, G.R. No. L-14008, September 30, 1960). Article 48 on compound crime speaks of single act, but not single criminal impulse (People vs. Pineda, G.R. No. L-26222, July 21, 1967). In Lawas case, the SC was merely forced to apply Article 48 because of the impossibility of ascertaining the number of persons killed by each accused (People vs. Nelmida, G.R. No. 184500. September 11, 2012). Thus, the Lawas  doctrine should not be applied if there is conspiracy since the number of victims actually killed by each conspirator is not anymore material if there is conspiracy (People vs. Elarcosa, G.R. No. 186539, June 29, 2010).  The “single criminal purpose rule ”  under the Abella case was adopted in consideration of the plight of the prisoners; hence, it is only applicable if killings were commit by prisoners against their fellow prisoners (People vs. Pincalin, G.R. No. L38755, January 22, 1981; People vs. Nelmida, G.R. No. 184500, September 11, 2012 32. Complex crime proper  - Stabbing after the rape is a separate crime of frustrated homicide. This is not a complex crime proper since the latter is not necessary to commit the former (People vs. Isla, G.R. No. 199875, November 21, 2012). a. Abduction and rape - If the main objective of the accused is to rape the victim, the crime committed is rape. Forcible abduction (People vs. Mejoraday, G.R. No. 102705, July 30, 1993; People vs. Almanzor, G.R. No. 124916, July 11, 2002) or illegal detention (People vs. Nuguid, G.R. No. 148991, January 21, 2004), which is incidental to the commission of rape, is absorbed. The doctrine of absorption rather than Article 48 of RPC is applicable since forcible abduction or illegal detention is an indispensable means to commit rape. If forcible abduction is a necessary means to commit rape, this is a complex crime proper under Article 48 of RPC. However, if multiple rapes were committed, forcible abduction will be considered as a necessary means to commit the first rape but not the subsequent rape. Hence, with respect to the first rape, the crime committed is complex crime of rape though forcible abduction while the subsequent rapes will be treated as separate crimes (People vs. Jose, G.R. No. L-28232, February 6, 1971; People vs. Buhos, G.R. No. L-40995, June 25, 1980; People vs. Tami, G.R. Nos. 101801-03, May 02, 1995; People vs. Garcia, G.R. No. 141125, February 28, 2002, En Banc; People vs. Amaro, G.R. No. 199100, July 18, 2014). As a rule, forcible abduction is an indispensable means to commit rape; hence, the latter absorbs the former. However, if the victim was brought in a house or motel or in a place with considerable distance from the place where she was abducted, forcible abduction will be considered as a necessary means to commit rape; hence, the crime committed is complex crime proper. If the accused abducted the victim without clear showing of lewd design, the crime committed is kidnapping since it will appear that the intention of the accused is to deprive victim of his liberty. If as a consequence of illegal detention, the victim was rape, the crime committed is a special complex crime of kidnapping with rape. This is 16 | P a g e

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the crime committed regardless of the number of rapes. Multiple rapes will be considered as a component of this special complex crime (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011; People vs. Anticamaray, G.R. No. 178771, June 8, 2011). If as a consequence of illegal detention, the victim was rape and then killed, the crime committed is a special complex crime of kidnapping with homicide. Rape will be considered as a component of this special complex crime (People vs. Larranaga, 138874-75, February 3, 2004, En Banc).  The difference between rape through forcible abduction and kidnapping with rape lies on the criminal intention of the accused at the precise moment of abduction. If the abduction is committed with lewd design, the crime committed is rape through forcible abduction. On the other hand, if the abduction is committed without lewd design, the crime committed is kidnapping with rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Even if the victim was detained for one week and in the course thereof, she was rape, the crime committed is rape through forcible abduction if the abduction is committed with lewd design (People vs. Amaro, G.R. No. 199100,  July 18, 2014). If the accused was molesting the victim immediately upon abduction, that is proof that abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by accused, the victim became dizzy and thereafter, she passed out. When she regained consciousness, she notices that she and accused are naked inside a room. She was raped and detained for 6 days. The crime committed is rape through forcible abduction (People vs. Amaro, G.R. No. 199100, July 18, 2014). b. Complex crime and special complex crime - In a composite crime, the composition of the offenses is fixed by law, but in a complex or compound crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the necessary means to commit the other. In a composite crime, the penalty for the specified combination of crimes is specific, but in a complex or compound crime the penalty is that corresponding to the most serious offense, to be imposed in the maximum period. A light felony that accompanies the commission of a complex or compound crime may be made the subject of a separate information, but a light felony that accompanies a composite crime is absorbed (People vs. Esugon, G.R. No. 195244, June 22, 2015, Bersamin). 33. Doctrine of absorption - If murder, kidnapping or arson committed in furtherance of rebellion, they will be divested of their character as common crimes and will assume the political complexion of rebellion. Hence, rebellion absorbs these crimes (People vs. Geronimo, G.R. No. L-8936, October 23, 1956; People vs. Hernandez, G.R. Nos. L-6025-26, July 18, 1956; Enrile vs. Salazar, G.R. No. 92163  June 5, 1990). Doctrine of absorption is applicable to coup d’etat for bein g a political crime because the purpose of coup plotter is to seize or diminish state power (Gonzales vs. Abaya, G.R. No. 164007, August 8, 2006, concurring opinion by Justice Callejo). Membership in CPP-NPA alone will not establish political motivation behind the killing for purpose of convicting the killers for rebellion (People vs. Lovedioro, G.R. No. 112235, November 29, 1995; People vs. Solongan, G.R. No. 137182, April 24, 2003). But membership in a liquidation squad and killing a government officer is sufficient to establish political motivation (People v. Dasig,G.R. No. 100231. April 28, 1993). RA No. 6968 eliminated the phrases "engaging in war against the forces of the government", "committing serious violence" and “destroying property” in Article 135 of RPC. These modes of committing rebellion deleted by RA No. 6968 were used by the SC in justifying the doctrine of absorption. The amendment of Article 135 does not affect the accepted concept of rebellion and these “overt acts of violence ” are deemed “subsumed” in the provision on public and armed uprising, which is an element of rebellion in Article 134 (Regalado). Hence, the doctrine of absorption is still good. The 17 | P a g e

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incidents in Lovedioro case, and Solongan case happened after RA No. 6968, and yet, the SC is still applying the doctrine of absorption. a. Sedition - Doctrine of absorption is not applicable to sedition. There is neither law nor jurisprudence which can allow the absorption of murder and kidnapping by sedition. The absorption principle in the cases of Hernandez and Geronimo cannot properly be invoked as authority since those two cases involved rebellion and not sedition (People vs. Hadji,  G.R. No. L-12686, October 24, 1963). Moreover, public and tumultuous uprising for political or social purpose, which is the essence of sedition, does not require killings, burning of properties and extortions. b. Incidental deprivation of liberty - If the principal intention of the offenders is to rob the victims, and the deprivation of their liberty is just incidental to the prevention of the responding police officers from arresting them, the crime committed is robbery, which absorbed kidnapping and serious illegal detention (People vs. Astor, G.R. Nos. L-71765-66, 29 April 1987). If the accused committed robbery, but thereafter, they detained the victims to demand additional money, and later forestall their capture by the police, the crime committed is complex crime of robbery through kidnapping and serious illegal detention. The detention was availed of as a means of insuring the consummation of the robbery. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. Hence, the Astor principle is not applicable (People vs. Salvilla, G.R. No. 86163 April 26, 1990). If the accused committed robbery by band, but thereafter, they took one of the victims and detained him for seven days in another place for purpose of demanding ransom, they are liable of separate crimes of robbery by band and kidnapping for ransom (People vs. Basao, G.R. No. 189820, October 10, 2012). 34. Delito continuado - In order that continuous crime may exist, there should be: (1) plurality of acts performed separately during a period of time; (2) unity of criminal intent and purpose and (3) unity of penal provision infringed upon or violated (Santiago vs. Garchitorena , GR NO. 109266, December 2, 1993). The following are delito continuado: (1) several acts of taking roasters owned by different owner under a single criminal impulse to take them all in violation of a single penal provision, and that is Article 308 of RPC (Note: This is also called single larceny rule; People vs. Jaranilla, G.R. No. L-28547, February 22, 1974); and (2)several acts of taking away by force the valuables of the employees working in Energex gasoline station committed under a single criminal intent to commit robbery in that place in violation of a single penal provision, and that is Article 294 of RPC (People vs. De Leon, GR No. 179943, June 26, 2009). Accused inserted his penis thrice into the private part of victim for purpose of changing position. The three penetrations motivated by a single criminal intent to satisfy his lust in violation of single penal provision (Article 266-A of RPC) constitute a continued crime of rape (People vs. Aaron, G.R. Nos. 136300-02, September 24, 2002). Accused inserted his penis thrice into the private part of victim for purpose of resting for five minutes. He satisfied his lust every time he would withdraw his penis to rest. Since the three penetrations were motivated by separate three criminal impulse to satisfy his lust, three separate crimes of rape are committed (People vs. Lucena, GR No. 190632, February 26, 2014). Foreknowledge doctrine -  There is no delito continuado where the accused when he committed the first threat against the victim has no foreknowledge that he will chance upon the second and third victims to commit the second and third threat. Without such foreknowledge, three threats could not be said to have been committed under a single criminal impulse, which is the basis of applying delito continuado principle. Several threats can only be considered as continued crime if the offender threatened three individuals at the same place and at the same time   (Paera vs. People, G.R. No. 181626, May 30, 2011). 18 | P a g e

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35. Incorrect penalty  –  The court should prescribe the correct penalties in complex crimes in strict observance of Article 48 of the Revised Penal Code . In estafa   through falsification of commercial documents, the court should impose the penalty for the graver offense in the maximum period. Otherwise, the penalty prescribed is invalid, and will not attain finality (De Castro vs. People, G.R. No. 171672, February 02, 2015, Bersamin). In Fransdilla vs. People, GR No. 197562, April 20, 2015, Bersamin, the trial  judge fixed the indeterminate sentence at "imprisonment of 12 years and 1 day to 14  years and 8 months of reclusion temporal   as minimum to 17 years, 4 months and 1 day to 20 years of reclusion temporal as maximum". This is a patent elementary error. Considering that the clear objective of the ISLAW is to have the convict serve the minimum penalty before becoming eligible for release on parole ,  both the minimum and the maximum penalties must be definite,  not ranging. This objective cannot be achieved otherwise, for determining when the convict would be eligible for release on parole would be nearly impossible if the minimum and the maximum were as indefinite   as the RTC fixed the indeterminate sentence. Indeed, that the sentence is an indeterminate one relates only to the fact that such imposition would leave the period between the minimum and the maximum penalties indeterminate   "in the sense that he may, under the conditions set out in said Act, be released from serving said period in whole or in part." In People vs. Fontanilla, G.R. No. 177743, January 25, 2012, Bersamin -  The trial court sentenced the accused to suffer reclusion perpetua to death for murder.  This is erroneous. Reclusion perpetua and death should not be imposed as a compound, alternative or successive penalty for a single felony. In short, the imposition of one precluded the imposition of the other. Article 64 of RPC provides the rules on application of divisible penalty. Under this provision, the penalty prescribed for a felony shall be applied in its proper imposable period based on the presence of modifying circumstances. Under Article 349 of RPC, the penalty for bigamy is prision mayor. In the absence of modifying circumstances, prision mayor pursuant to Article 64 shall be applied in its medium period, which ranges from 8 years and 1 day to 10 years. Applying the Islaw , the minimum of the indeterminate sentence should be within the range of prision correccional , the penalty next lower than that prescribed for the offense, which is from 6 months and 1 day to 6 years. Accordingly, the indeterminate sentence of 2 years and 4 months of prision correccional, as minimum, to 8 years and 1 day of prision mayor   as maximum is proper (Lasanas vs. People, G.R. No. 159031,  June 23, 2014, Bersamin). Under Article 249 of RPC, the penalty for homicide is reclusion temporal . In the absence of any modifying circumstances, reclusion temporal   shall be applied in its medium period, which ranges from 14 years, 8 months and 1 day to 17 years and 4 months. Applying Article 64, within the limits of the medium period of reclusion temporal, the courts shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the crime . Thus, the court could not impose the highest penalty of the medium period of reclusion temporal, and that, is 17 years and 4 months without specifying the justification for so imposing. Without proper  justification, the court should impose the lowest penalty of the medium period of reclusion temporal, and that is, 14 years, 8 months. Since ISLAW is applicable, 14  years, 8 months shall be considered as the maximum penalty while the minimum penalty shall be fixed within the limits of prision mayor, which ranges from 6 years and 1 day to 12 years. Hence, the accused is sentenced to suffer 10 years of prision mayor as minimum indeterminate penalty to 14 years, 8 months of reclusion temporal as maximum penalty (Ladines vs. People, G.R. No. 167333, January 11, 2016, Bersamin). 19 | P a g e

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36. Four indivisible penalty -  There are four kinds of divisible penalty, which are governed by Article 64, to wit: (1) penalty composed of three periods fixed in accordance with Article 76; (2) penalty not composed of three periods computed in accordance with Article 65; (3) complex penalty under Article 77, par. 1; and (4) penalty without specific legal form under Article 77, par. 2. a. Penalty containing three periods  –   Article 76 of RPC expressly fixed the range of the period for reclusion temporal ,  prision mayor , temporary disqualification,  prision correccional, destierro, suspension, arresto mayor, and arresto menor.  To find the range of the periods of any of the afore-said penalties, one will simply read Article 76. If the crime committed is homicide and there is one mitigating circumstance of confession, the prescribed penalty of reclusion temporal shall be applied in its minimum period because of Article 64. Article 76 expressly states that the range of the minimum period of reclusion temporal is from 12 years and 1 day to 14 years and 8 months. Within the range of this period, the maximum indeterminate penalty shall be fixed.  The range of the minimum, medium and maximum periods fixed in accordance with Article 76 is one-third equal portion of the respective penalties except arresto mayor. Under Article 76, the minimum period of arresto mayor ranges from 1 month and 1 day to 2 months; medium period ranges from 2 month and 1 day to 4 months; and maximum period ranges from 4 months and 1 day to 6 months. Hence, the time included in the duration of the minimum period of arresto mayor is only one month while that of the medium and maximum is two months. b. Penalty not composed of three periods - Penalties with divisible duration, the periods of which are not expressly mentioned in Article 76 are called “ penalties not composed of three periods ”; since Article 76 has not fixed the duration of their periods, they must be computed in accordance with Article 65. Under this provision, the time included in the duration of penalty shall be divided into three equal portions and periods shall be formed from each portion.  The penalty for malversation under paragraph 2 of Article 217 of RPC is prision mayor in its minimum and medium period. The range of this penalty is not found in Article 76. Considering that this penalty is not composed of three periods, the time included in the penalty prescribed should be divided into three equal portions, which each portion forming one period, pursuant to Article 65 (Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin).  The duration of “prision mayor in its minimum and medium period” is 6 years and 1 day to 10 years. To determine “the  time included in the duration ,” deduct “one day ” and the lower limit of the prescribed penalty from its upper limit. 10 years -------------------upper limit - 6 years and 1 day ------- lower limit - 1 day -------------------------4 years ------- time included in the duration of penalty Four years, which is “the time included in the duration ,” shall be divided into three equal portions. 4 years ÷3 ------------------------1 year and 4 months --------- one third portion of the penalty

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 The minimum, medium and maximum periods shall be formed out the 3 equal portions of the penalty. The time included in the duration of each period is 1 year and 4 months. 6 years +1 year and 4 months ---------------------------7 years and 4 months + 1 year and 4 months ---------------------------8 years and 8 months +1 year and 4 months ----------------------------10 years  Thus, the minimum period of the prescribed penalty of “ prision mayor in its minimum and medium periods ” ranges from 6 years and 1 day to 7 years and 4 months; its medium period ranges from 7 years, 4 months and 1 day to 8 years and 8 months; its maximum period rages from 8 years, 8 months and 1 day to 10 years (Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin). c. Complex penalty  –   Complex penalty is composed of three distinct penalties.  The periods of complex penalty is formed in accordance with Article 77, par. 1. Applying this provision, each of the components of the complex penalty shall form a period; the lightest of them shall be the minimum, the next the medium, and the most severe the maximum period. Reclusion temporal to death prescribed for treason committed by resident alien under Article 114 of RPC is a complex penalty. This penalty is composed to three distinct penalties, namely: reclusion temporal, reclusion perpetua and death penalty. Out of these three components, periods shall be formed in accordance with Article 77, par. 1. Thus, reclusion temporal, which is the lightest of the three, shall be minimum period of penalty of reclusion temporal to death; reclusion perpetua, which is the next penalty, shall be the medium period; death penalty, which is the most severe, shall be the maximum period. Thus, in the absence of modifying circumstances, reclusion temporal to death prescribed for treason shall be applied in its medium period, and that is, reclusion perpetua. Prision correccional in its maximum period to prision mayor in its medium period prescribed for simple robbery under Article 294 of RPC is a complex penalty under since it composed of three distinct penalties. Thus, prision correccional in its maximum  period, which is the lightest of the three, shall be minimum period of this prescribed penalty. Prision mayor in its minimum period,  which is the next penalty, shall be the medium period. Prision mayor in its medium period, which is the most severe, shall be the maximum period. In sum,  prision correccional in its maximum period to prision mayor in its medium period  prescribed for robbery shall be broken down as follows:

Minimum: Prision correccional in its maximum period (4 years, 2 months and 1 day to 6 years) Medium: Prision mayor in its minimum period (6 years and 1 day to 8 years) Maximum: Prision mayor in its medium period (8 years and 1 day to 10 years) See: People vs. Dela Cruz, G.R. No. 168173, December 24, 2008, En Banc, People vs. Barrientos, G.R. No. 119835, January 28, 1998, En Banc, People vs. Castillo, G.R. No. L-11793, May 19, 1961, En Banc, People vs. Diamante, G.R. No. 180992, September 04, 2009, and People vs. Lumiwan, G.R. Nos. 122753-56, September 07, 1998. 21 | P a g e

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Reclusion temporal in its medium period to reclusion perpetua prescribed for sexual abuse under Section 5 (b) of RA No. 7610 is a complex penalty since it composed of three distinct penalties. Applying Article 77, par. 1, this complex penalty can be broken down as follows: Minimum: Reclusion (14 years, Medium: Reclusion (17 years, Maximum: Reclusion

temporal in its medium period 8 months and 1 day to 17 years and 4 months) temporal in its maximum period 4 months and 1 day to 20 years) perpetua

See: People vs. Morante, G.R. No. 187732, November 28, 2012 d. Penalty without specific legal form  –  Reclusion temporal to reclusion  perpetua prescribed for mutilation under Article 262 is a penalty without a specific form (People vs. Romero, G. R. No. 112985, April 21, 1999). The duration of its periods is not fixed by Article 76. This penalty cannot be divided into three equal portions in accordance with Article 65 since it has an indivisible component, and that, is reclusion perpetua. It is not a complex penalty under Article 77, par. 1 since it merely composed of two distinct penalties. Thus, its periods shall be determined in accordance with Article 77, par. 2, which provides that the periods shall be distributed, applying for analogy the prescribed rules.  Applying Article 77, par. 1 by analogy, the maximum period shall be formed out of the most severe penalty, and that is, reclusion perpetua . Applying Article 65 by analogy, the duration of reclusion temporal   shall be divided into two equal portions and minimum and medium periods shall be formed from each portion. Applying Article 77, par. 2, reclusion temporal to reclusion perpetua  is broken down as follows:

Minimum: Lower half of reclusion temporal 12 years and 1 day to 16 years Medium: Higher half of reclusion temporal 16 years and 1 day to 20 years Maximum: Reclusion perpetua See: People vs. Macabando, G.R. No. 188708, July 31, 2013; People vs. Romero, G. R. No. 112985, April 21, 1999; Gonzales vs. People, G.R. No. 159950, February 12, 2007; and People vs. Oliva, G.R. No. 122110, September 26, 2000 Reclusion temporal in its maximum period to reclusion perpetua prescribed for malversation under Article 217 is a penalty without specific form. The duration of its periods is not fixed by Article 76. This penalty cannot be divided into three equal portions in accordance with Article 65 since reclusion perpetua component is not divisible. It is not a complex penalty under Article 77, par. 1 since it merely composed of two distinct penalties. Thus, its periods shall be determined in accordance with Article 77, par. 2. Applying this provision, the maximum period shall be formed out of the most severe penalty, and that is, reclusion perpetua . The duration of reclusion temporal  in its maximum period  shall be divided into two equal portions, and minimum and medium periods shall be formed from each portion. In sum, reclusion temporal in its maximum  period to reclusion perpetua  is broken down as follows: 22 | P a g e

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Minimum: Lower half of reclusion temporal in its maximum period 17 years, 4 months and 1 day to 18 years and 8 months Medium: higher half of reclusion temporal in its maximum period 18 years, 8 months and 1 day to 20 years Maximum: Reclusion perpetua See: Estepa vs. Sandiganbayan, G.R. No. 59670, February 15, 1990, Torres vs. People, GR No. 175074, August 31, 2011, Cabarlo vs. People, G.R. NO. 172274, November 16, 2006; Mesina vs. People, G.R. No. 162489, June 17, 2015, Bersamin. 37. Special mitigating circumstance - Accused was found guilty of parricide punishable by the penalty of reclusion perpetua  to death. Applying rules for application of indivisible penalties (Article 63), the lesser penalty of reclusion perpetua shall be applied if there are two mitigating circumstance. The penalty cannot be lowered to reclusion temporal, no matter how many mitigating circumstances are present. The special mitigating circumstance is found in rules for application of divisible penalties (Article 64), which is not applicable because the penalty is not divisible (People vs.  Takbobo, G.R. No. No. 102984, June 30, 1993). The Takbobo   principle is also applicable if the penalty prescribed by law for the crime committed is a single indivisible penalty such as reclusion perpetua. If there are three mitigating circumstance and one aggravating circumstance, special mitigating circumstance for purpose of graduating the penalty shall not be appreciated. Although there are two remaining mitigating circumstances after applying the off-set rule, the penalty shall not be lowered by one degree because the appreciation of special mitigating circumstance requires that there is no aggravating circumstance. 38. Off set rule - Only ordinary aggravating and mitigating circumstances are subject to the offset rule. Privileged mitigating circumstance of minority cannot be offset by ordinary aggravating circumstance (Aballe vs. People, G.R. No. L-64086, March 15, 1990). If privileged mitigating circumstance and ordinary aggravating circumstance attended the commission of felony, the former shall be taken into account in graduating penalty; the latter in applying the graduated penalty in its maximum period (People vs. Lumandong, GR NO. 132745, March 9, 2000, En Banc). Quasi-recidivism is a special aggravating circumstance and cannot be offset by a generic mitigating circumstance (People vs. Macariola, G.R. No. L-40757 January 24, 1983). The circumstance of treachery, which qualifies the killing into murder, cannot be offset by a generic mitigating circumstance voluntary surrender (People vs. Abletes and Pamero, GR NO. L-33304, July 31, 1974). 39. Penalty of offense under special law -  The penalty for possession of dangerous drugs is 12 years and 1 day to 20 years of imprisonment. The court cannot impose a straight penalty of 12 years and 1 day since the application of indeterminate sentence law is mandatory (unless the accused deserves a lenient penalty by confessing pursuant to the Nang Kay principle). Applying the Islaw, the minimum indeterminate penalty shall not be less than 12 years and 1 day while the maximum shall not exceed 20 years. Thus, the court can sentence the accused to suffer 15 years of imprisonment as minimum to 18 years as maximum (Asiatico vs. People, G.R. No. 195005, September 12, 2011; Escalante vs. People, G.R. No. 192727, January 9, 2013). Under Section 9 of RA 3019, the penalty for violation of Section 3 (e) of RA 3019 is imprisonment for not less than 6 years and 1 month and not more than 15 years. Applying the Islaw, the minimum indeterminate penalty shall not be less than 6 years and 1 month while the maximum shall not exceed 15 years. Thus, the court can sentence the accused to suffer 6 years and 1 month of imprisonment as minimum to 10 years as maximum (People vs. Reyes, G.R. No. 177105-06, August 12, 2010, Bersamin). 23 | P a g e

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40. Mandatory application of the Islaw -  The application of the Indeterminate Sentence Law is mandatory to both the Revised Penal Code and the special laws (Romero vs. People, G.R. No. 171644, November 23, 2011). However, the Supreme Court, in People vs. Nang Kay, G. R. No. L-3565, April 20, 1951, has provided an exception. In this case, the accused pleaded guilty to offense where the law prescribed a penalty of 5 to 10 years imprisonment. The court sentenced the accused to suffer 5  years of imprisonment. The Supreme Court sustained the penalty. Fixing the penalty at the minimum limit without applying Act No. 4103 is favorable to the accused since the accused shall be automatically released upon serving 5 years of imprisonment. Applying Act No. 4103 would lengthen the penalty because the indeterminate maximum penalty must be necessarily more than 5 years (People vs. Arroyo, G.R. No. L-35584-85, February 13, 1982). However, the Nang Kay principle is not applicable where the crime is punishable under the Revised Penal Code. The application of ISLAW is always mandatory if the penalty is prescribed by RPC since it is favorable to the accused. It is favorable to the accused since in fixing the minimum penalty, the prescribed penalty under the Code shall be lowered by one degree. On the other hand, in fixing the minimum penalty for offense under special law involved in the Nang Kay  case, the prescribed penalty shall not be lowered (People vs. Judge Lee, Jr, G.R. No. 66859, September 12, 1984). The Nang Kay principle is not also applicable where the accused does not deserve a lenient penalty. In Batistis vs. People, G.R. No. 181571, December 16, 2009, the SC through Justice Bersamin said the Nang Kay   exception is not applicable where there is no justification for lenity towards the accused since he did not voluntarily plead guilty, and the crime committed is a grave economic offense because of the large number of fake Fundador confiscated. 41. Adoption of the technical nomenclature of the Spanish penalty - RPC is not generally applicable to malum prohibitum. However, when a special law, which punishes malum prohibitum , adopts the technical nomenclature of the penalties in RPC, the provisions under this Code shall apply (People vs. Simon, G.R. No. 93028,  July 29, 1994) such as: (1) Article 68 on the privilege mitigating circumstance of minority; (2) Article 64 on application of penalty in its minimum period if there is a confession; and (3) Article 160 on special aggravating circumstance of quasirecidivism. RA No. 7080 and RA No. 10591 adopt the nomenclature of the penalties in RPC. Hence, minority, confession (Jacaban vs. People, GR No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733, September 21, 2007) or quasi-recidivisim shall be considered in plunder and illegal possession of loose firearm. Under Section 98 of RA No. 9165, the provisions of RPC shall not apply except in the case of minor offenders. Hence, if the accused is a minor, privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735, October 24, 2012Asiatico vs. People, G.R. No. 195005, September 12, 2011), confession or quasi-recidivisim (People vs. Salazar, G.R. No. 98060, January 27, 1997) shall be considered in crime involving dangerous drugs. In this case, life imprisonment shall be considered as reclusion perpetua. If the accused is an adult, these circumstances shall not be appreciated. If the special law (such as RA No. 6235 on hijacking and RA No. 3019 on corruption) did not adopt the technical nomenclature of penalties in RPC, the latter shall not apply. Mitigating circumstance of confession shall not be appreciated since the penalty not borrowed from RPC cannot be applied in its minimum period. The crime has not attempted or frustrated stage since penalty not borrowed from RPC cannot be graduated one or two degrees lower. Mitigating circumstance of old age can only be appreciated if the accused is over 70 years old at the time of the commission of the crime under RA No. 3019 and not at the time of promulgation of judgement (People vs. Reyes, G.R. No. 177105-06, August 12, 2010, Bersamin). Moreover, this the mitigating circumstance of old age 24 | P a g e

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cannot be appreciated in crime punishable by RA No. 3019 since this law did not adopt the technical nomenclature of the penalties of the Revised Penal Code. 42. Subsidiary penalty - If the convict has no property with which to meet the fine, he shall be subject to a subsidiary personal liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court (Article 39 of RPC as amended by RA No. 10159). 43. Multiple sentences - When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. Thus, convict could serve simultaneously arresto mayor and fine, prision correccional and perpetual absolute disqualification, or reclusion perpetua   and civil interdiction. In sum, while lingering in prison, convict could pay fine, return the property confiscated, be disallowed to cast his vote or to act function as a public officer. When the culprit has to serve two or more penalties, he shall serve them successively if the nature of the penalties will not permit simultaneous service. Convict must serve multiple penalties successively: (1) where the penalties to be served are destierro and imprisonment; and (2) where the penalties to be served are imprisonment. However, the successive service of sentences is subject to the three-fold rule and 40-year limitation rule. 44. Three-fold rule -  The three fold rule is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed (People vs. Escares, G.R. No. L-11128-33, December 23, 1957; Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987). Thus, the court cannot dismiss criminal cases in excess of three on the basis of three-fold rule. 45. Modes of criminal extinction  –   The modes of extinguishing criminal liability are: death of the offender; service of the sentence; amnesty or absolute pardon; prescription of crime, or penalty; marriage between the offender and the offended in crimes against chastity (Article 89 of RPC) or in rape; or forgiveness in marital rape (Article 266-C); and probation (PD No. 968 as amended by RA No. 10707 . a. Reelection - Reelection to public office is not provided for in Article 89 of RPC as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection (Oliveros vs. Villalulz, G.R. No. L-34636, May 30, 1974). But a re-elected public official could not be removed for administrative offense committed during a prior term, since his re-election to office operates as a condonation of his misconduct to the extent of cutting off the right to remove him therefor (Aguinaldo vs. Santos, G.R. No. 94115 August 21, 1992). However, the doctrine of condonation of administrative offense by reason of reelection has been abandoned for being inconsistent to Section 1, Article X1 of the 1987 Constitution on public office is a public trust and public accountability (Morales vs. CA and Binay, GR No. 217126-27, November 10, 2015). b. Novation - Novation is not a mode of extinguishing criminal liability but it can extinguish the old contract, which may be the basis of criminal liability. In estafa through misappropriation, “receiving the property in trust ” is an element thereof. In sum, contract is an ingredient of this crime. Novation may convert the contract of trust into creditor-debtor situation, or put doubt on the true nature of the original transaction (People vs. Nery, G.R. No. L-19567, February 5, 1964). In these situations, the accused will be acquitted for failure to prove the element of “receipt of property in trust.” Thus, novation is a defense in estafa through misappropriation where the contract of agency is converted into sale (Degaños vs. People, GR No. 162826, October 14, 2013, Bersamin). However, partial payment and promise to pay the balance of obligation under contract of agency will not convert it into sale. There is no novation since the obligation of the accused in making a partial payment is not incompatible to the obligation to give the proceeds of sale of the property under the contract of agency (Degaños vs. People, supra). 25 | P a g e

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Novation cannot be used as a defense in case where the existence of contract is not an element. In theft case, there was no contractual relationship or bilateral agreement which can be modified or altered by the parties (People vs. Tanjutco, G.R. No. L-23924, April 29, 1968, En Banc).In estafa through falsification of public documents, the liability of the offender cannot be extinguished by mere novation (Milla vs. People, G.R. No. 188726, January 25, 2012). c. Death - Death of an accused pending appeal shall extinguish his criminal liability and civil liability arising from crime (Article 89 of RPC); but not his civil liability arising from a source other than crime (e.g. quasi-delict, contract, quasicontract or law). Civil liability arising from a source other than crime is not deemed included   in the institution of criminal action. Hence, the private complainant must file a separate civil action against either the executor or administrator, or the estate of the accused. During the pendency of the criminal case, the statute of limitations on this surviving civil liability is deemed interrupted (People vs. Bayotas, G.R. No. 102007, September 2, 1994). However, in violation of BP Blg. 22, civil liability arising from a source other than crimeis mandatorily included   in the institution of criminal action. Hence, the court, despite the death of the accused pending appeal, must determine his civil liability arising from contract (Bernardo vs. People, G.R. No. 182210, October 05, 2015). In sum, the private complainant is not required to file a separate civil action based on contract involving a dishonored check. d. 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 (Article 36 of RPC) or expressly remitted the accessory penalty of perpetual absolute disqualification (Article 41). GMA pardoned President Estrada with express restoration of his civil and political rights. Hence, he is eligible to run as Mayor (Risos-vidal vs. Lim, G.R. No. 206666, January 21, 2015). e. Blameless ignorance doctrine -  The State and private complainant should not be blame for failure to institute the case immediately after the commission of the crime if they are ignorant or has no reasonable means of knowing the existence of a crime. Under "blameless ignorance" doctrine (Section 2 of Act 3326 and Article 91 of RPC), the prescription runs only upon discovery of the crime by offended party or State through a person in authority or his agent. Considering that during the Marcos regime, no person would have dared to assail the legality of the transactions involving cronies such as behest loan, it would be unreasonable to expect that the discovery of the unlawful transactions was possible prior to 1986 (Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11, 2013). Hence, the prescriptive period for violation of RA No. 3019 commenced from the date of its discovery in 1992 after the Committee made an exhaustive investigation (Presidential Ad hoc fact-finding committee vs. Hon. Desierto, G.R. No. 135715, April 13, 2011). d. Discovery by a witness - Prescription runs only upon discovery of the crime by offended party or person in authority or his agent. For purpose of prescription of crime, the offended party includes the person to whom the offender is civilly liable.  Thus, the widow of the murdered victim is an offended party (Garcia vs. CA, G.R. No. 119063, January 27, 1997). Discovery of crime by a mere witness, who is not an offended party, will not commence the running of prescription. e. Constructive notice rule -  The 10-year prescriptive period for falsification of document shall commence to run on the date of recording of the falsified deed of sale in the Registry of Deeds because of the constructive notice rule under the Torren system (People vs. Reyes, G.R. No. 74226, July 27, 1989). The 15-year prescriptive period for bigamy shall commence to run on the date of actual discovery of the bigamous marriage and not from the registration of bigamous marriage in the Office of the Civil Registrar. The law on Civil Registry and the Family Code, which governed 26 | P a g e

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registration of marriage, do not provide a rule on constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14, 1994). f. Non-actionable crime - As a rule, period of prescription commence to run from the date of discovery of its commission. However, if the crime is not yet actionable at the time of its commission, period of prescription will commence to run from the time it becomes actionable. In false testimony, the period of prescription commences to run from the date of the finality of judgment of a case in which the offender testified falsely. Prior to the date of finality, the crime is not yet actionable (People vs. Maneja, G.R. No. 47684, June 10, 1941). In violation of BP Blg. 22, the crime is consummated upon the dishonor of the check by the drawee bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001). However, in violation of BP 22, the four-year   period of prescription for such crime commences to run from the date of the expiration of the five-day period from receipt of notice of dishonor by the drawer. Prior to that date, the crime is not yet actionable (People vs. Pangilinan, G.R. No. 152662, June 13, 2012). It would be absurd to consider the prescriptive period for false testimony or violation of BP Blg. 22 as already running before it becomes actionable, and yet, the complainant could not cause its interruption because he is not yet allowed to file a complaint. h. Filing of complaint for preliminary investigation - If the crime is punishable by the Revised Penal Code or a special law , the institution of  judicial  proceeding(e.g. filing of complaint or information in court) or executive proceeding (e.g. filing of complaint for preliminary investigation) interrupts the running of prescription such as the filing of complaint: (1) for violation of BP Blg. 22 in the prosecutor’s office - People vs. Pangilinan, G.R. No. 152662, June 13, 2012;Panaguiton vs. Department of  Justice, G.R. No. 167571, November 25, 2008; (2) for violation of Revised Securities Act in Securities and Exchange Commission - SEC vs. Interport Resources Corporation, G.R. No. 135808, October 6, 2008; or (3) violation of RA No. 3019 in the Ombudsman - Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11, 2013.  The PCGG has no power to investigate cronies of Marcos for violation of RA No. 3019 not involving ill-gotten wealth. Such investigation for being voidab initio would not interrupt the running of prescription (People vs. Romualdez and Sandiganbayan, G.R. No. 166510, April 29, 2009). Ifthe crime is punishable by an ordinance, only the institution of  judicial  proceeding shall interrupt itstwo-month prescriptive period. The provision in the Rules on Criminal Procedure regarding the interruption of prescription by institution criminal action is not applicable to violation of ordinance because it is covered by the Rules on Summary Procedure. Hence, the filing of complaint involving violation of ordinance for preliminary investigation will not interrupt the running of the prescription (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, October 7, 2013). 47. Probation -Probation shall suspend the execution of principal penalty of imprisonment, and accessory penalty of disqualification (Villareal vs. People, G.R. No. 151258, December 01, 2014) but not the implementation of the civil aspect of the  judgment (Budlong, vs. Palisok, GR No. 60151, June 24, 1983). 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 (Section 4 of PD 968 as amended by RA No. 10707). 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 27 | P a g e

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offense of attempted homicide, may apply for probation. In Villareal vs. People, G.R. No. 151258, December 1, 2014, accused was convicted of homicide, a nonprobationable 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. Under PD No. 968 as amended, crimes against public disorder are nonprobationable. However, under RA No. 10707, crimes against public disorder such as alarm and scandal and direct assault are now probationable.  The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years. When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment (Section 14 of PD No. 968). 48. Direct assault  –  Simple assault (such as punching) upon an agent of a  person in authority   (e.g. police officer) while engaged in the performance of duty constitutes simple resistance and not direct assault because there is no intent to defy the law and its representative at all hazard, which is an element thereof (U.S. vs.  Tabiana, G.R. No. 11847, February 1, 1918; U.S. vs. Agustin, G.R. No. 13083, December 11, 1917; People vs. Lapitan, G.R. No. 38226, November 17, 1933). But serious assault upon agent of a person in authority   while engaged in the performance of duty constitutes direct assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649, September 6, 1910). Simple assault (such as punching) upon a person in authority   (e.g. mayor or chief of police) while engaged in the performance of duty constitutes qualified direct assault. The law does not distinguish between serious and simple “laying of hands” upon a person in authority as a qualifying circumstance. Hence, a simple laying of hands upon a person in authority constitutes qualified direct assault. The Tabiana principle is only applicable if the victim is an agent of a person in authority ( U.S. vs. Gumban , G.R. No. 13658, November 9, 1918). If the person in authority or his agent is engaged in the actual performance of duties at the time of the assault, the motive for the assault is immaterial. Direct assault is committed even if the motive (such as non-payment of loan) was totally foreign to victim’s official function (Sarcepuedes vs. People, G.R. No. L -3857, October 22, 1951).  The phrase "on occasion of such performance " used in Article 148 of RPC means "by reasonof the past performance of official duty because the purpose of the law is to allow them to discharge their duties without fear of being assaulted by reason thereof (People vs. Renegado, G.R. No. L-27031, May 31, 1974). Attacking a judge on the street by reason of past performance of duty (such as citing the accused in contempt) constitutes qualified direct assault (U.S. vs. vs. Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired judge by reason of past performance of duty is not direct assault since he is not anymore a person in authority at the time of the assault. Note: The mandatory retirement age of a judge is 70 year.  The status of lawyer as persons in authority remains even the assault is committed outside the court room as long as it is perpetrated by reason of the performance of their professional duties (Records of the Batasan, Volume Four, 19841985 of BP Blg. 873, which amended Article 152 of RPC). Attacking a third person who comes to the aid of a person in authority, who is a victim of direct assault, is liable for direct assault upon an agent of a person in authority . Attacking a third person who comes to the aid of an agent of person in authority, who is a victim of direct assault, is liable for indirect direct assault . 28 | P a g e

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Attacking a third person who comes to the aid of an agent of person in authority, who is a victim of simple resistance, is liable for  physical injuries . 49. Evasion -  In evasion of service of sentence, the accused must be a convicted prisoner and not merely a detention prisoner. In delivery of prisoner from  jail, the person, who escaped through the help of the accused, is either a detention prisoner or convicted prisoner. In infidelity in the custody of prisoner, the person, who escaped in connivance with or consent of or through negligence of the accusedcustodian, is either a detention prisoner or convicted prisoner. Evasion in the service of sentence and delivery of prisoner from jail are committed by means of dolo. Infidelity in the custody or prisoner is committed by means of dolo or culpa; if this crime is committed by means of dolo, it is called conniving with or consenting to evasion; if committed by means of culpa, it is called evasion through negligence. Brother of a detention prisoner and convicted prisoner bribed the clerk of court to falsify release order and their custodians to release his brothers. Convicted prisoner but not the detention prisoner is liable for evasion of service of sentence. Brother and clerk of court are liable for delivery of prisoner from jail with respect to the escape of detention prisoner and convicted prisoner. Custodians are liable for infidelity in the custody of prisoners with respect to the escape of detention prisoner and convicted prisoner. Brother is liable for two counts of corruption of public officer. Clerk of court and custodians are liable for direct bribery. Clerk of court and brother are liable for falsification of document as principal by direct participation and as principal by inducement, respectively. 50. Bribery - Plaintiff gave money to the judge, who in consideration thereof subsequently rendered an unjust decision in favor of the former. The judge is liable of direct bribery and rendering unjust decision, while the plaintiff is liable of corruption of public officer. But if the plaintiff gave money to the judge, who subsequently rendered a decision against the former, the crime committed by the judge is indirect bribery while the plaintiff is liable of corruption of public officer. The judge is not liable of direct bribery since rendering a decision against the corruptor indicates that the former did not receive the money in consideration of rendering a decision in favor of the latter. It seems that the plaintiff merely gave the money to the judge by reason of his position as such. 51. Abortion and infanticide  –   If the fetus is killed inside the womb of his mother, the crime is abortion regardless of whether he is viable or not (People vs. Paycana, Jr. G.R. No. 179035, April 16, 2008; People vs. Salufrania, G.R. No. L50884, March 30, 1988). If the victim is killed outside the womb of the mother, the crime is: (1) abortion if the victim is not viable e.g. intrauterine life is only 6 months (People vs. Detablan, 40 O.G. No. 9, p. 30; People vs. Paycana, Jr. G.R. No. 179035, April 16, 2008); or (2) infanticide, if the victim is viable e.g. his intrauterine life is more than 6 months and his life is less than 3 day old; or (3) murder if the victim is viable and his life is 3 day old or more. If the accused maltreated his wife and as a consequence, his wife and unborn child died, the crime committed is compound crime of parricide and unintentional abortion (People vs. Robinos, G.R. No. 138453, May 29, 2002; People vs. Villanueva, G.R. No. 95851, March 01, 1995). If the accused maltreated his pregnant wife and as a consequence, his wife died, and his child was expelled, and died thereafter within 3 days, the crime committed is compound crime of parricide and infanticide. If the accused maltreated his pregnant wife and as a consequence, his wife died, and his child was expelled, and died thereafter on the third day, the crime committed is compound crime of double parricides. In abortion and infanticide, concealment of dishonor is a special mitigating circumstance that can be appreciated in favor of the mother and maternal grandparents but not in favor of the father or fraternal grandparents. 29 | P a g e

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52. Parricide - In parricide, if the victim is his parent or child, the relationship can either be legitimate or illegitimate ; if the victim is the spouse, grandparent or grandchild, the relationship must be legitimate   (People vs. Gamez, GR No. 202847, October 23, 2013). Relationship in parricide is by blood except where the victim is spouse (Regalado). The qualifying circumstance of relationship in parricide is personal. Hence, it can be appreciated against the wife but not against a co-conspirator, who is not related to her husband, the victim (People vs. Bucsit G.R. No. 17865, March 15, 1922). 53. Death under exceptional circumstance -Death under exceptional circumstance is a not crime but a defense (People vs. Puedan, G.R. No. 139576, September 2, 2002), or an absolutory cause (People vs. Talisic, G.R. No. 97961, September 05, 1997) since instead of imposing the penalty for parricide, murder or homicide, the accused shall only suffer destierro, which is just a measure designed to protect accused from acts of reprisal principally by relatives of the victim (People vs. Araquel, G.R. No. L-12629, December 9, 1959). Hence, death under exceptional circumstance is not a felony within the contemplation of Article 4 (People vs. Abarca, G.R. No. 74433, September 14, 1987) and aggression under exceptional circumstance is not an unlawful aggression within the contemplation of self-defense (US vs. Merced, G.R. No. 14170, November 23, 1918). Killing his wife after surprising her in the act of committing homosexual intercourse with another woman is not death under exceptional circumstance. “Sexual intercourse ” mentioned in Article 247 is different from homosexual intercourse. Killing his mistress after surprising in the act of committing sexual intercourse with a man is not death under exceptional circumstance(U.S. vs. Versola, G.R. No. 10759, January 25, 1916). The offender in Article 247 must be a “legally married person .” Killing his wife under the circumstance indicating that she had just finished having sexual intercourse with another man is not death under exceptional circumstance. He did not catch his wife in the very act of sexual intercourse , but after such act (People vs. Gonzales, G.R. No. 46310, October 31, 1939). 54. Death in a tumultuous affray - The elements of death caused in a tumultuous affray are as follows: (a) that there be several persons; (b) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally (Note: If there is conspiracy, this element is not present; conspirators are liable for homicide or murder; People vs. Corpuz, G.R. No. L-36234 February 10, 1981); (c) that these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained who actually killed the deceased (Not: If the killers are identified, this element is not present; since they are identified, they are liable for homicide or murder; Wacoy vs. People, G.R. No. 213792, June 22, 2015); and (f) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 55. Rape  –  Among the amendments of the law on rape introduced under RA No. 8353 is Section 266-D, which provides “Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution rape ” (People vs. Sabadlab, G.R. No. 175924, March 14, 2012, Bersamin). The legislators agreed that Article 266-D is intended to soften the jurisprudence on tenacious resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002). Failure to shout should not be taken against the victim (People vs. Rivera, GR No. 200508, September 04, 2013; People vs. Rubio, G.R. No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It is not necessary for the victim to sustain physical injuries. She need not kick, bite, hit or scratch the offender with her fingernails to prove that she had been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).

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a. Qualifying circumstance - If the relationship between the accused and the victim of rape is uncle and niece, the Information must alleged that the offender is “a relative by consanguinity or affinity within the third civil degree” because there are niece-uncle relationships which are beyond the third civil degree. However, a sisterbrother relationship is obviously in the second civil degree. Consequently, it is not necessary that the Information should specifically state that the accused is a relative by consanguinity within the third civil degree of the victim (People vs. Ceredon, G.R. No. 167179, January 28, 2008). Knowledge of the mental disability of the victim is not an element of rape (People vs. Caoile, GR No. 203041, June 5, 2013) but it is an ingredient of the qualifying circumstance of mental disability, which must be alleged in the information (People vs. Obogne, GR No. 199740, March 24, 2014; People vs. Lascano, G.R. No. 192180, March 21, 2012). In qualifying circumstances of minority and relationship in rape and special aggravating circumstance in sexual abuse under RA No. 7610, the guardian must be a person who has legal relationship with his ward. He must be legally appointed was first (People vs. Flores G.R. No. 188315, August 25, 2010).  The Pruna guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance, are as follows. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim (People vs. Lupac, G .R. No. 182230, September 19, 2012, Bersamin). b. Absorption rule - 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, 31 | P a g e

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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). c. Variance rule - 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 a lesser crime, which 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). d. Marital rape - Husband can be held liable for marital rape. Article 266-A of RPC uses the term “man ” in defining rape without regard to the rapist’s legal relationship with his victim. Under Article 266-C of RPC, 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. 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 inti macy with him is always obligatory or at least, presumed (People vs. Jumawan, G.R. No. 187495, April 21, 2014), e. Public crime - Rape is no longer considered a private crime or that which cannot be prosecuted, except upon a complaint filed by the aggrieved party. Hence, pardon by the offended party of the offender in the crime of rape will not extinguish the offender's criminal liability (People vs. Bonaagua, GR No. 188897, June 06, 2011). f. Statutory rape -  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, Bersamin). h. Criminal touching -  Touching of either labia majora or labia minora of the  pudendum   of the victim by an erect penis of the accused 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, Bersamin). 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). In People vs. Nuyok, G.R. No. 195424, June 15, 2015, Bersamin, 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. In People vs. Belgar, G.R. No. 182794, September 08, 2014, Bersamin, the accused had injected an unknown substance into her belly that had then rendered her unconscious. Upon waking up, she had found herself lying naked on the ground; she had felt pain in her vagina, which held a red and white substance in it; and he had 32 | P a g e

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been the only person last seen by her before she had passed out. The lack of direct evidence against him notwithstanding, these circumstances sufficed to prove his guilt beyond reasonable doubt because they formed an unbroken chain that unerringly showed Belgar, and no other, had committed the rape against her. If the offender touches the body of the victim through force, without touching the labia of her pudendum but with clear intention to have sexual intercourse, the crime committed is attempted rape . Intent to have sexual intercourse is present if is shown that the erectile penis of the accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin) or the accused actually commenced to force his penis into the victim's sexual organ (People vs. Banzuela, G.R. No. 202060, December 11, 2013). 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). If the offender touches the body of the victim through force, with lewd design but without clear intention to have sexual intercourse, the crime committed is acts of lasciviousness. Kissing and 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), touching the breast and thighs of victim and kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); 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, but lewd design is established. In People vs. Dadulla, G. R. No. 172321, February 9, 2011, Bersamin, the accused's act of opening the zipper and buttons of AAA's shorts, touching her, and trying to pull her from under the bed manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent to lie with AAA motivated the accused was plainly wanting, therefore, rendering him guilty only of acts of lasciviousness In Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin, touching her genitalia with his hands and mashing her breasts are "susceptible of double interpretation." These circumstances may show that 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. If the offender touches the body of the victim without lewd design or without clear intention to satisfy lust, the crime committed is unjust vexation . In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November 29, 1967, accused kissed and embraced his co-teacher while the latter was conducting her class.  The factual setting, i.e., a schoolroom in the presence of complainant's students and within hearing distance of her co-teachers, rules out a conclusion that the accused was actuated by a lustful design. The crime committed is merely unjust vexation. In People vs. Sumingwa, G.R. No. 183619, October 13, 2009, embracing, dragging and kissing in front of her friend constitute unjust vexation. 56. Perjury - Person cannot be held liable for perjury involving a complaint affidavit for theft based on the execution of affidavit of desistance. There is no perjury solely on the basis of two contradictory statements. There must be further evidence that will show which of the two sworn statements is false (U.S. vs. Capistrano 40 Phil. 902).

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In a verified answer, accused denied the allegation in the complaint for collection on his loan obligation. He is not liable for perjury since verification is not required in answer in a civil case. He cannot be prosecuted for perjury on the basis of an alleged falsehood made in a verified pleading, which is not mandated by law to be verified (Saavedra, Jr. vs. Department of Justice, G.R. No. 93178, September 15, 1993; Flordelis vs. Himalaloan, G.R. No. L-48088, July 31, 1978).  The fact that subornation of perjury is not expressly penalized in RPC does not mean that the direct induction of a person by another to commit perjury has ceased to be a crime, because said crime is fully within the scope of provision on principal by inducement (People vs. Pudol, G.R. No. 45618, October 18, 1938). Making untruthful statement (failure to disclose previous criminal conviction) in a sworn application   for the patrolman examination constitutes perjury (People vs. Cruz, 108 Phil. 255). Making untruthful statement (failure to disclose pending criminal case) in unsworn PDS constitutes falsification of document (Sevilla vs. People, G.R. No. 194390, August 13, 2014). If there are several mistakes the PDS including those which are not important, accused cannot be convicted of falsification of document since it appears that failure to disclose pending criminal case is not deliberate. Hence, accused is only liable for reckless imprudence resulting in falsification (Sevilla vs. People, supra). Making it appears that a person participated in an act or proceeding where in fact he did not is not the actus reus in perjury. Hence, a mayor, who made it appear that affiants swore and signed the affidavit before him where in fact they did not, is liable of falsification of document and not perjury (Lonzanida vs. People, G.R. Nos. 160243-52, July 20, 2009). 57. Falsification - Falsification of a public document is consummated upon the execution of the false document. What is punished in falsification of public document is principally the undermining of the public faith and the destruction of truth as solemnly proclaimed therein. The fact that accused did not benefit from, or that the public was not prejudiced by the falsified resolution is not a defense (Goma vs. CA, G.R. No. 168437, January 08, 2009). When the offender commits falsification of public, official or commercial document as a necessary means to commit malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs. Salonga, G.R. No. 131131, June 21, 2001), the crime committed is complex crime proper under Article 48 of RPC. In De Castro vs. People, G.R. No. 171672, February 02, 2015, Bersamin, as a bank teller, she took advantage of the bank depositors who had trusted in her enough to leave their passbooks with her upon her instruction. Without their knowledge, however, she filled out withdrawal slips that she signed, and misrepresented to her fellow bank employees that the signatures had been verified in due course. Her misrepresentation to her co-employees enabled her to receive the amounts stated in the withdrawal slips. She thereby committed two crimes, namely: estafa , by defrauding the bank, her employer, in the various sums withdrawn from the bank accounts of depositors; and falsification of a commercial document, by forging the signatures of depositor in the withdrawal slips to make it appear that the depositor concerned had signed the respective slips in order to enable her to withdraw the amounts. Such offenses were complex crimes, because the estafa  would not have been consummated without the falsification of the withdrawal slips. When the offender commits falsification of public, official or commercial document as a means to conceal malversation (People vs. Sendaydiego, G.R. Nos. L33252-54, January 20, 1978; People vs. Villanueva , G.R. No. 39047, October 31, 34 | P a g e

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1933, En Banc), estafa (People vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft, the crimes are separate. This is not complex crime proper since one is not a necessary means to commit another. Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex crime of estafa through falsification of documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. If the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company. Hence, the accused is liable for separate crimes of estafa and falsification of document (Patula vs. People, G.R. No. 164457, April 11, 2012, Bersamin). Other view: If falsification is committed for purpose of enabling the accused to commit malversation (People vs. Silvanna, G.R. No. L-43120, July 27, 1935; Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140) with less risk of being detected, the accused is liable for complex crime proper. In Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin, there is a big disparity between the amount covered by receipts issued to the taxpayer, and the amount for the same receipts in the tax collection reports indicating the falsification resorted to by the accused in the official reports he filed, thereby remitting less than what was collected from taxpayers concerned, resulting to the loss of revenue for the government as unearthed by the auditors. Thus, the accused is liable for complex crime of malversation through falsification of documents. If the falsification of a private document (demand letter, letter of guarantee) is committed as a means to commit estafa, the crime committed is falsification only. Under the common element doctrine, the use of damage as an element in falsification of private document precludes the re-use thereof to complete the elements of estafa. Hence, estafa is not committed because the element of damage is not present(Batulanon vs. People, G.R. No. 139857, September 15, 2006); U.S. vs Chan Tiao , G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516, November 10, 1931). There is no complex crime of estafa through falsification of private document. If a person commits falsification of private document to conceal malversation or estafa, the crime is estafa only. Under the common element doctrine, the use of damage as an element in estafa precludes the re-use thereof to complete the elements of falsification. Hence, estafa is not committed because the element of damage is not present (See: People vs. Beng, 40 O.G. 1913). 58. Malversation - For purpose of malversation, national officer   shall be considered as an accountable officer if he has custody or control of public property by reason of the duties of his office (Government Auditing Code of the Philippines. The Local Government Code expanded the concept of accountable local officer. Local officer  shall be considered as an accountable officer if he has possession or custody of local government funds because of the nature of their functions such a treasure or has participated in the use or application of thereof (Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015) such as a mayor, whose signature is needed to disburse municipal funds (Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February 08, 2012). 35 | P a g e

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Malversation is committed either intentionally or by negligence. The dolo  or the culpa   is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is still committed (Mesina vs. People, G.R. No. 162489, June 17, 2015, Bersamin). 59. Estafa  – In offenses against property (theft or estafa), if the subject matter of the offense is generic and not identifiable   (e.g. money), an error in the designation of the offended party is fatal. However, if the subject matter of the offense is specific and identifiable (e.g. check or jewelry), an error in the designation of the offended party is immaterial (Senador vs. People, G.R. No. 201620, March 06, 2013). 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). Demand is not an element of estafa through misappropriation. Demand is only important if there is no direct evidence of misappropriation because failure to account for the property in trust upon demand is circumstantial evidence of misappropriation. In this connection, verbally inquired about the money entrusted to the accused is tantamount to a demand (Asejo vs. People, G.R. No. 157433, July 24, 2007). On the other hand, demand is not necessary where there is direct evidence of misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015). This rule on demand is applicable to malversation (Munib vs. People, G.R. Nos. 163957-58, April 07, 2009). Where the borrower is importers acquiring goods for resale, goods sold in retail are often within his custody until they are purchased. This is covered by trust receipt agreement. Failure to return the unsold good or deliver the proceeds of sale to the bank is estafa in relation to PD No. 115 (Trust Receipt Law). Where the borrower is engaged in construction, the materials are often placed under custody of his clients, who can only be compelled to return the materials if they fail to pay. Since the bank and the contractor know that the return of the materials is not possible, this is not covered by trust receipt agreement. This transaction becomes a mere loan, where the borrower is obligated to pay the bank the amount spent for the purchase of the goods.  The accused is not liable for estafa because of the constitutional provision of nonimprisonment for nonpayment of debts (Yang vs. People, G.R. No. 195117, August 14, 2013). In other forms of swindling under Article 316, (1) and (2) of RPC, offender made 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 ” (Estrellado-Mainar vs. People, G.R. No. 184320, July 29, 2015) or "como libre". These words "como libre " in the Spanish Penal Code are deemed incorporated in the RPC (Naya vs. Abing, G.R. No. 146770, February 27, 2003). 60. Theft -  To "take" under theft the Revised Penal Code does not require asportation or carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015). It is not an indispensable requisite of theft that a pickpocket should carry, more or less far away, a wallet taken from its owner (People vs. Mercado, G.R. Nos. L-45471 and L45472, June 15, 1938).  The term "personal property" in RPC 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). Since asportation is not an element of theft, a personal property can to be the object of theft as along as it is capable of appropriation although it is not capable of "asportation" (Medina vs. People, G.R. No. 36 | P a g e

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182648, June 17, 2015). Intangible property is not capable of asportation, and yet, it can be an object of theft since is capable of asportation. If the property is tangible , taking is deemed complete from the moment the offender gains possession over the thing, even if he has no opportunity to dispose of the same (People vs. Bustinera, G. R. No. 148233, June 8, 2004). If the property is intangible, taking includes controlling the destination of this property stolen to deprive the owner of the property (e.g. the use of a meter tampering, use of a device to fraudulently obtain gas, and the use of a jumper to divert electricity). Using device to control the destination of international telephone call under the telecommunication system of PLDT without its consent to earn by charging user of the phone at the expense of PLDT is taking the property of PLDT of providing telecommunication service (Laurel vs. Abrogar, supra). a. No frustrated theft - 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. 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 is a lesser crime, which is necessarily included in the charge of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015). b. Theft through misappropriation - Misappropriation of personal property received by the accused with consent of the owner is theft or carnapping or cattle rustling if his possession is  physical or de facto, or estafa through misappropriation if it is legal or de jure. If the accused received the car from the owner for repair the possession is physical, and thus, misappropriation thereof is carnapping (Santos vs. People, G.R. No. 77429 January 29, 1990).If the accused received the property to bring it to a goldsmith for examination and to immediately return it   back to the owner, his possession is physical, and thus, misappropriation thereof is theft (U.S. v. De Vera, G.R. No. L-16961, September 19, 1921). If the accused received the property with authority to sell it (Guzman vs. CA, 99 Phil. 703), or money with authority to use it to buy palays (Carganillo vs. People, G.R. No. 182424, September 22, 2014), or with full freedom and discretion on how to use it to facilitate its remittance to BIR as payment of tax and reduce the amount due (Velayo vs. People, G.R. No. 204025, November 26, 2014), his possession is juridical. Thus, failure of the agent to return it is estafa (Guzman v. Court of Appeals, 99 Phil. 703; Tria vs. People, G.R. No. 204755, September 17, 2014). A franchise holder must personally operate the motor vehicle. That is the reason why government regulation prohibits operator of motor vehicle from leasing it. In the eye of the law the driver of taxi or passenger jeepneyunder boundary arrangement 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) As a rule, the possession of the employee such as bank teller, collector or cash custodian is only physical possession. Hence, misappropriation of property is qualified theft. Abuse of confidence is present since the property is accessible to the employee (People v. Locson, G.R. No. L-35681, October 18, 1932; Matrido vs. People, G.R. No. 179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466, February 25, 2015; 37 | P a g e

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Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; Balerta vs. People, G.R. No. 205144, November 26, 2014). However, if the employee is an officer of the companywith discretion on how to use property or fund of the company,his possession is juridical; hence, misappropriation thereof is estafa. Thus, the following officers are liable for estafa through misappropriation (1) a corporate officer with discretion option on how to use bending machine without the participation of the corporation(Aigle vs. People, G.R. No. 174181, June 27, 2012); (2) bank President with discretion on how to administer fund (People vs. Go, G.R. No. 191015, August 6, 2014), and (3) Liaison Officer of a pawnshop with discretion on how to secure or renew licenses and permits (Gamboa vs. People, G.R. No. 188052, April 21, 2014). In robbery with intimidation of persons, the intimidation consists in creating fear in the mind of a person 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. Threat of prosecution and confiscation of the logs by DENR officers is an intimidation within the meaning of robbery (Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009). c. 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). d. Qualified theft - If the property is not accessible to the employee, taking it is simple theft (Viray vs. People, G.R. No. 205180, November 11, 2013). On the other hand, if the property is accessible to the employee, taking it is qualified theft because of the circumstance of abuse of confidence (Yongco vs. People,G.R. No. 209373, July 30, 2014). 61. Arson  –   Destructive arson is characterized as heinous crime; while simple arson under PD No. 1613 is a crime manifesting a lesser degree of perversity. Simple arson contemplates the malicious burning of property not included in Article 320  of the RPC (People vs. Macabando, GR No. 188708, July 31, 2013). Burning of inhabited house or dwelling or personal property is simple arson under Section 3 of P.D. No. 1613 because it is not included in Article 320 of RPC. If the main objective is to kill the victim in a building, and fire is resorted to as the means to accomplish such goal, the crime committed is murder only. Murder qualified by means of fire absorbs arson since the latter is an inherent means to commit the former (People vs. Cedenio, G.R. No. 93485, June 27, 1994). Single act of burning the building to kill two persons constitutes compound crime of double murders (People vs. Gaffud, G.R. No. 168050, September 19, 2008). One has deliberately set fire to a building is presumed to have intended to burn the building (People vs. De Leon, G. R. No. 180762, March 4, 2009). Since intent to burn is presumed, intent to kill must be established beyond reasonable doubt. Failure to show intent to kill, the accused shall be convicted of arson with homicide and not murder (People vs. Baluntong, G.R. No. 182061, March 15, 2010). If the main objective is to burn the building, but death results by reason or on the occasion of arson, the crime is arson with homicide, and the resulting homicide is absorbed (People vs. Villacorta, 172468, October 15, 2008). If the objective is to kill, and in fact the offender has already done so, and arson is resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes of either homicide or murder, and arson (People vs. Cedenio, G.R. No. 93485, June 27, 1994). 38 | P a g e

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62. Bigamy  –  After the consummation of the crime of bigamy, declaration of nullity of  first marriage and/or  second marriage   is not a defense on the following grounds: First ground - After the consummation of bigamy, subsequent declaration of nullity of the first and/or the second marriage is not a defense since it is not a mode of extinguishing criminal liability listed in Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009). Bigamy is consummated upon contracting second marriage despite the subsistence of the first marriage consummates. Once the crime consummates, criminal liability will attach to the accused and will not be extinguished except through a mode mentioned in Article 89 of RPC as death, pardon etc. After the consummation of bigamy or celebration of the second marriage, the criminal liability shall not be extinguished by subsequent events such as declaration of nullity of marriage not mentioned in Article 89 of RPC. Second ground - To make declaration of nullity of  first marriage and/or second marriage  after the consummation of the crime of bigamy as a defense would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape liability for bigamy (Tenebro vs. The Honorable Court of Appeals, G.R. No. 150758, February 18, 2004; Walter vs. People, GR No. 183805, July 03, 2013).  Third ground - To avoid criminal liability, the declaration of nullity of the first marriage must be made previous to the consummation of bigamy, which is required by Article 40 of the Family Code that 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). Even though the first marriage was contracted prior to the Family Code, the rule is the same since Article 40, which is a rule of procedure, should be applied retroactively. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs. People, G.R. No. 164435, June 29, 2010). Article 40 of the Family Code is only applicable if what is involved is declaration of nullity of the first marriage. Hence, if what is involved is post-bigamy declaration of nullity of the first marriage , this is not a defense because of the first, second and third grounds. If what is involved is post-bigamy declaration of nullity of the second marriage , this is not a defense because of the first and second grounds. Post-bigamy declaration of nullity of the first or second marriage is not a defense whether the ground for nullity is psychological incapacity (Mercado vs. Tan, G.R. No. 137110, August 1, 2000) or lack of license and affidavit of cohabitation (Lasanas vs. People, G.R. No. 159031, June 23, 2014, Bersamin) or even though the declaration is obtained before the filing of the complaint for bigamy (People vs. Odtuhan, GR No. 191566, July 17, 2013). Exceptions: 1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079, the second marriage was celebrated one day before the issuance of the marriage license. In this situation, the accused can use the voidness of the second marriage as a defense in bigamy. The 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, G.R. No. 200233, July 15, 2015) but marriage contracted against the provisions of the law under Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955). 39 | P a g e

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 The De Lara principle is only applicable if the two requisites are applicable: (1) the accused did not did not cause the falsification of public documents in order to contract a second marriage. As a rule, the 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 (Santiago vs. People, G.R. No. 200233, July 15, 2015); and (2) the second marriage is null and void for lack of marriage license; if the first marriage is declared null and void due to lack of marriage license or affidavit of cohabitation, this is not a defense because Article 40 of the Family Code required declaration of nullity before the celebration of second marriage (Lasanas vs. People, G.R. No. 159031, June 23, 2014, Bersamin). 2. 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). 3. 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 because the first was existing when the contracted the second. 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. X is not liable for bigamy involving the third marriage on the basis of the second marriage since the second is null and void for being a bigamous marriage. Other view: X is liable for bigamy involving the third marriage on the basis of the second marriage. Although the second is null and void for being a bigamous marriage, X should have first caused the declaration of nullity of the second marriage for being bigamous before contracting a third marriage. 63. Illegal marriage  –   A priest, who performed a marriage ceremony despite knowledge that the couple had no marriage license, is liable for illegal marriage. The law sets the minimum requirements constituting a marriage ceremony: first, there should be the personal appearance of the contracting parties before a solemnizing officer; and second,  their declaration in the presence of not less than two witnesses that they take each other as husband and wife (Ronulo vs. People, G.R. No. 182438,  July 02, 2014). 64. Libel - Under Article 360 of the RPC, the publisher, and editor of newspaper, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof. The publisher and editors cannot disclaim liability for libelous articles that appear on their paper by simply saying they had no participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication of Remate, on which the defamatory articles appeared. It is not a matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as if they were the author (Tulfo vs. People, G.R. No. 161032, September 16, 2008). Comment is not fair if there is reckless disregard of knowing whether the defamatory imputation is false or not. Hence, the accused cannot use the fair comment principle as a defense. In Erwin Tulfo vs. People, G.R. No. 161032, 40 | P a g e

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September 16, 2008 - Journalists bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. The report made by Tulfo describing a lawyer in the Bureau of Customs as corrupt cannot be considered as "fair" and "true" since he did not do research before making his allegations, and it has been shown that these allegations were baseless.  The articles are not "fair and true reports," but merely wild accusations. He had written and published the subject articles with reckless disregard of whether the same were false or not. 65. Incriminating an innocent person - As a general rule, planting of evidence to incriminate an innocent person constitutes the crime of incriminating an innocent person under Article 363 of RPC. However, if the incriminatory evidence planted is dangerous drugs or unauthorized explosives, loose firearm or ammunition, the crime committed is planting of evidence under RA 9165 for the dangerous drug, PD 1866 as amended by RA 9516 for the explosive and RA No. 10591 for loose firearm. If unlawful arrest is committed to plant incriminatory evidence, the crime committed is complex crime of incriminating innocent person through unlawful arrest (People vs. Alagao, G.R. No. L-20721, April 30, 1966). If incriminatory evidence is planted to justify an unlawful arrest, the crime committed is complex crime of unlawful arrest through incriminating an innocent person. But if the incriminatory evidence is dangerous drugs, explosive or loose firearm, unlawful arrest and planting of evidence are separate crimes. Complex crime is not committed since planting of evidence, which is punishable under special law, cannot be made a component of a complex crime. Stealing property and planting the stolen property to impute to the victim the crime of theft constitutes complex crime of incriminating an innocent person through theft. Planting of live bullet by NAIA personnel to extort money from a passenger of an airline constitutes separate crime of planting of evidence and consummated or attempted robbery. 66. Imprudence or negligence  –   To make a doctor liable for reckless imprudence resulting to homicide, it must be shown that he did not treat his patient in accordance with the standard of care and skill commonly possessed and exercised by similar specialists under similar circumstances. Failure to present specialist as witness to testify on this standard is fatal to the prosecution of the case (Solidum vs. People, GR No. 192123, March 10, 2014, Bersamin).  There are two views on whether culpa is a crime or just a mode of committing a crime. First view: Culpa under Article 3 of the Revised Penal Code is not a crime but  just a mode of committing a crime. Applying this rule, there are three crimes committed, to wit: (1) reckless imprudence resulting in homicide, (2) reckless imprudence resulting in damage to property and (3) reckless imprudence resulting in slight physical injuries. However, single reckless act resulting in homicide and damage to property is a complex crime (Angeles vs. Jose, G.R. No. L-6494, November. 24, 1954). But the slight physical injuries that resulted from the same recklessness shall be treated as a separate crime. Since this is a light felony, it cannot be made a component of a complex crime (Lontoc, Jr. vs. Gorgonio, L37396, April 30, 1979; People vs. Turla, G.R. No. L-26388, February 14, 1927; Gonzaga vs. People, G.R. No. 195671, Jan. 21, 2015; 1983, 2011, and 2012 Bar Exams). Under this view, the motion to quash shall be denied because reckless imprudence resulting in slight physical injuries and the complex crime of reckless imprudence resulting in homicide and damage to property are separate crimes, and 41 | P a g e

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hence, the conviction of the first is not a bar to the continued prosecution of the second. Second view: Reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes; hence, conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasioffense, regardless of its various consequences. The essence of the quasi-offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. Thus the law penalizes the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty. It does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense criminal negligence remains one and the same, and cannot be split into different crimes and prosecutions (Ivler vs. Modesto-San Pedro, G.R. No. 172716, November 17, 2010; Quizon vs. Hon. Justice of Peace, July 28, 1955, GR N L-6641; People vs. Buan, L25366, March 29, 1968; 1952, 1959, 1961 and 2013 Bar Exams ). Under this view, the motion to quash shall be granted because reckless imprudence resulting in homicide, damage to property and slight physical injuries constitute a single crime, and hence, the conviction of culpable felony involving slight physical injuries is a bar to the continued prosecution of the same culpable felony involving homicide and damage to property. 67. BP 22  –  Settled is the rule that estafa will not lie when the parties waive the negotiable character of a check, and instead treat the same as proof of an obligation. For instance, when there is an agreement between the parties at the time of the issuance and postdating of the checks that the obligee shall not encash or present the same to the bank, the obligor cannot be prosecuted for estafa   because the element of deceit is lacking (People vs. Villanueva, G.R. No. 163662, February 25, 2015, Bersamin). In BP Blg. 22, the fact that the check is not intended to be encashed or deposited in a bank is not a defense. This check produces the same effect as ordinary check.  What the law punishes is the issuance of a rubber check itself and not the purpose for which the check was issued nor the terms and conditions relating to its issuance (Cueme vs. People, G.R. No. 133325, June 30, 2000). a. Knowledge of the payee - When the payee was informed that the checks are not covered by adequate funds, bad faith or estafa shall not arise People vs. Villanueva, G.R. No. 163662, February 25, 2015, Bersamin). In BP Blg. 22, the facts that the payee had knowledge that he had insufficient funds at the time he issued the check is immaterial as deceit is not an essential element of the offense under this law. The gravamen of the offense under BP Blg. 22 is the issuance of a bad check; hence, malice and intent in the issuance thereof are inconsequential (Rigor vs. People , G.R. No. 144887, November 17, 2004). b. No account with the bank - According to the accused, she did not own the check that she issued to complainant as collateral. He merely borrowed it from a friend. What BP Blg. 22   punished was the mere act of issuing a worthless check. The law did not look either at the actual ownership of the check. The law penalizes a person who indulges in the making and issuing of unfunded check on an account belonging to another with the latter’s consent. Also, that the check was not intended to be deposited was really of no consequence to her incurring criminal liability under BP 22 (Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin). c. Pre-existing obligation - In order to constitute estafa   through issuance of bouncing check, the postdating or issuing a check must be the efficient cause of the defraudation. In sum, the offender must be able to obtain property from the offended party by reason of the issuance of the check (People vs. Reyes, GR No. 157943, September 4, 2013). Thus, In estafa, the fact that check was issued in payment of preexisting obligation is a valid defense (People vs. Reyes, G.R. No. 154159, March 31, 42 | P a g e

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2005). But in BP Blg. 22, it is not a valid defense (Ngo vs. People, G.R. No. 155815,  July 14, 2004). In BP Blg. 22, the check involved must be issued to apply on account or for value . Deliberations in the Batasan Pambansa indicate that “ account ” refers to pre-existing obligations; while “ for value”  means an obligation incurred simultaneously with the issuance of the check. e. Notice of dishonor  –  To be guilty of this crime the accused must have

used the check in order to defraud the complainant. 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, supra). But receipt of notice of dishonor is not an element of estafa through issuance of bouncing check.  The giving of the written notice of dishonor does not only supply the proof for the second element of violation of BP Blg. 22 arising from the presumption of knowledge the law puts up but also affords the offender due process. The law thereby allows the offender to avoid prosecution if she pays the holder of the check the amount due thereon, or makes arrangements for the payment in full of the check by the drawee within five banking days from receipt of the written notice that the check had not been paid. The Court cannot permit a deprivation of the offender of this statutory right by not giving the proper notice of dishonor (Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin). Demand letter was given with the security guard without proof that it reached accused and through registered mail which was returned with the notation "N/S Party Out 12/12/05". Since there is proof that accused received the notice of dishonor, he was acquitted. However he is still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013).  The mere presentment of the two registry return receipts was not sufficient to establish the fact that written notices of dishonor had been sent to or served on the petitioner as the issuer of the check. Considering that the sending of the written notices of dishonor had been done by registered mail, the registry return receipts by themselves were not proof of the service on the accused without being accompanied by the authenticating affidavit of the person who had actually mailed the written notices of dishonor, or without the testimony in court of the mailer on the fact of mailing (Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin). For notice by mail, it must appear that the same was served on the addressee or a duly authorized agent of the addressee. In fact, the registry return receipt itself provides that “[a] registered article must not be delivered to anyone but the addressee, or upon the addressee’s written order, in which case the authorized agent must write the addressee’s name on the proper space and then affix legibly his own signature below it.”  In the case at bar, no effort was made to show that the demand letter was received by petitioners or their agent. All that we have on record is an illegible signature on the registry receipt as evidence that someone received the letter. As to whether this signature is that of one of the petitioners or of their authorized agent remains a mystery (Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin).  The wife of complainant verbally informed the accused that the check had bounced did not satisfy the requirement of showing that written notices of dishonor had been made to and received   by the petitioner. The verbal notices of dishonor were not effective because it is already settled that a notice of dishonor must be in writing (Resterio vs. People, G.R. No. 177438. September 24, 2012, Bersamin). Under the Negotiable Instruments Law, notice of dishonor is not required where the drawer has no right to expect that the bank will honor the check. Since bank 43 | P a g e

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account of accused was already closed even before the issuance of the subject check, he had no right to expect the drawee bank to honor his check. Hence, he 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. f. Payment - Payment of check before the filing of information is a defense. The spirit of B.P. Big 22, which is to protect the stability of the banking system, would not be served by penalizing people who have corrected their mistakes and restituted damages even before charges have been filed against them. In sum, by making payment of the check before the filing of the information, the purpose of the law has already been attained. Payment of check after the filing of informationis not a defense. Since there is no showing of intention to mitigate the bad effects of his issuance of the unfunded check, then there is no equitable 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, G.R. No. 190834, November 26, 2014).  The essence of estafa through issuance of bouncing check is to punish fraud and not to protect the integrity of the check. Damage and deceit are elements of estafa, 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 (Lim vs. People, supra). g. Suspension of payment - Suspension of payment order issued by SEC before the check was presented for payment is a defense in BP Blg. 22. Considering that there was a lawful Order from the SEC, the contract is deemed suspended. Thus, the accused has no obligation to fund the check and the complainant has no right to present it for payment (Gidwani vs. People, GR No. 195064, January 15, 2014). Suspension of payment order issued by SEC after three months from receipt of notice of dishonor is not a defense in BP Blg. 22. The accused has the obligation to make good of the check after he received the letter prior to the issuance of suspension order (Rosario vs. Co, G.R. No. 133608, August 26, 2008). 68. RA No. 7610 -  The Family Code prohibits the infliction of corporal  punishment by teacher. A schoolteacher in employing unnecessary violence on her minor student, who even fainted, is liable for child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, October 08, 2014, Bersamin). Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck minorvictim 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, Bersamin). a. Sexual abuse - Having sexual intercourse or lascivious conduct with a child constitutes child prostitution   if committed for money, profit, or any other consideration (People vs. Jalosjos, G.R. Nos. 132875 -76, November 16, 2001); or sexual abuse  is committed under coercion or influence of any adult, syndicate or group. In child prostitution, the victim is called child exploited in prostitution while in sexual abuse the victim is called child subjected to other abuse (Section 5 of RA No 7610). Coercion is either physical or psychological. Taking advantage of ascendency as a swimming instructor over student is psychological coercion (People vs. Larin, G.R. No. 128777, October, 7 1998). The assurance of love, guarantee that she would not get pregnant by using the "withdrawal method" and the promise of marriage were classified as "psychological coercion" and "influence" within the purview of Section 5 of RA 7610. Hence, accused is guilty of sexual abuse (Caballo vs. People, GR No. 198732, June 10, 2013). 44 | P a g e

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If the child is 12 years old and above, and the acts of the accused constitute sexual abuse under RA No. 7610 and rape through sexual assault or acts of lasciviousness, he shall be prosecuted under RA No. 7610 since this law prescribed a grave penalty (Dimakuta vs. People, G.R. No. 206513, October 20, 2015). However, if the acts constitute sexual abuse and rape through sexual intercourse, he shall be prosecuted under RPC since this law prescribed a graver penalty. He cannot be prosecuted for compound crime of rape and sexual abuse because the latter is punishable under special law. He cannot be prosecuted for both rape and sexual abuse because of the rule on double jeopardy (People v. Matias, G.R. No. 186469,  June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013). If the child is under 12 years old, and the acts of the accused constitute sexual abuse and rape or acts of lasciviousness, the latter shall be prosecuted penalized as follows: (1) rape through sexual intercourse; (2) acts of lasciviousness with the penalty of reclusion temporal in its medium period (Section 5 of RA No. 7610).Prior to RA No. 8353 (Rape Law), inserting finger into genital orifice is acts of lasciviousness. Hence, reclusion temporal in its medium period under RA No. 7610 should be imposed. Under RA No. 8353, inserting finger into genital orifice is rape through sexual assault where the penalty is prision mayor. To impose the lighter penalty under RPC as amended by RA 8353 is unfair to the victim. It is not the intention of RA No. 8353 to disallow the imposition of penalty under RA No. 7610 if the victim is child subjected to sexual abuse, who isunder 12 years of age (People vs. Chingh, G.R. No. 178323, March 16, 2011). If the crime is qualified rape through sexual assault, the Ching case is not applicable since RA No. 8353 prescribed a grave penalty of reclusion temporal for it (People vs. Bonaagua, G.R. No. 188897, June 6, 2011). 69. Terrorism  - Terrorism is committing a predicate crime which creates a condition of widespread and extraordinary fear and panic among populace in order to coerce the government to give in to an unlawful e.g. demand by Al Queda against the US not to interfere with the affairs of the Muslim (Section of RA No. 9372). The predicate crimes of terrorism are: Piracy, highway robbery, hijacking, rebellion, coup e’tat, murder, kidnapping and serious illegal detention, crimes involving destruction, arson, unlicensed firearm and explosives, violation of Toxic Substances and Hazardous and Nuclear Waste Control Act and violation of Atomic Energy Regulatory and Liability Act. 70. Trafficking in person - Accompanying a child and offering her sexual services  in exchange for money constitutes child prostitution. The accused who offered the victim to the one who raped her is not liable for rape as principal indispensable cooperation since bringing the victim to the rapist is not indispensable to the commission of the crime of rape (People vs. Dulay, GR No. 193854, September 24, 2012). If the accused is regularly offering the sexual service of the child in exchange for money, the crime committed is not anymore child prostitution. Maintaining or hiring the child as purpose of prostitution constitutes qualified trafficking in person because the former took advantage of vulnerability of the latter as a child and as one who need money. Minority is qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014; People vs. Hirang, G.R. No. 223528, January 11, 2017, Bersamin). Recruiting without license a person, child or adult, to work as a prostitute abroad   constitutes the crime of trafficking in person and illegal recruitment. Syndicate is qualifying circumstance in both crimes. Even if the accused is less than three, but the allegation and evidence shows that there are at least three traffickers and recruiters, syndicated can be appreciated as qualifying circumstance (People vs. Lalli, G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012). 71. Illegal recruitment - An employee may be held liable with his employer, if the former actively and consciously participated in illegal recruitment. The employee cannot escape liability by claiming that she was not aware that before working for her employer in the recruitment agency, she should first be registered with the POEA. 45 | P a g e

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Illegal recruitment in large scale is malum prohibitum, not malum in se. Good faith is not a defense (People vs. Valenciano, G.R. No. 180926, December 10, 2008). 72. RA No. 9165 -  Accused were caught by police authorities on board a speedboat carrying shabu . 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 (People vs. Chan Liu, G.R. No. 189272, January 21, 2015). Possession of different kinds of dangerous drugs in a single occasion constitutes a single offense of possession of dangerous drugs (David vs. People, G.R. No. 181861, October 17, 2011). 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). a. Use of dangerous drugs - Where residue of dangerous drugs is found and there is a positive confirmatory test result, the accused should be charged with use rather than possession of dangerous drugs. This would be in keeping with the intent of the law 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). Positive confirmatory test is an element of use of dangerous drugs. However, the absence of such test cannot be raised as an issue for the first time on appeal (Ambre vs. People, G.R. No. 191532. August 15, 2012). b. Attempted sale - Poseur-buyer showed shabu for sale to poseur buyer. The sale was aborted when the police officers immediately placed accused under arrest.  The crime committed is attempted sale (People vs. Figueroa, G.R. No. 186141, April 11, 2012). c. Coordination with PDEA - Lack of coordination with the PDEA will not invalidate a buy-bust operation. Such coordination is not an indispensable requirement in buy-bust operations (People vs. Mendosa, G.R. No. 189327, February 29, 2012) e. Seizure and custody - Although non-compliance with the prescribed procedural requirements would not automatically render the seizure and custody of the contraband invalid, that is true only when there is a justifiable ground for such non-compliance, and the integrity and evidentiary value of the seized items are properly preserved. Any departure from the prescribed procedure must then still be reasonably justified, and must further be shown not to have affected the integrity and evidentiary value of the confiscated contraband (People vs. Barte, G.R. No. 179749, March 30, 2017, Bersamin). g. Chain of custody -  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).

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h. Plea bargaining - Section 23 of RA No. 9165, any person charged under any crime involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. 73. RA No. 3019  –  In Giangan vs. People, G.R. No. 169385, August 26, 2015, Bersamin  -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. In People vs. Reyes, G.R. No. 177105-06, August 12, 2010, Bersamin, the Court of Appeals (CA) rendered a decision reinstating the title of the complainant. Provincial Adjudicator despite knowledge of the CA decision still rendered his decision in a DARAB Case that completely contradicted the CA decision by invalidating title of the complainant. He displayed evident bad faith and manifest partiality by his arrogant refusal to recognize and obey the CA decision causing undue injury to the complainant and giving unawaarnted benefits to private individuals in violation of Section 3 (e) of RA No. 3019. In usurpation of judicial function, the accused, who is not a judge, attempts to perform an act the authority for which the law has vested only in a judge. However, the petitioner's task as Provincial Adjudicator when he rendered judgment in a DARAB case to adjudicate the claims of the opposing parties. As such, he performed a quasi judicial function, closely akin to the function of a judge of a court of law. He could not be held liable for usurpation of judicial function were. a. Arias principle -  To apply the Arias rule for purposes of exonerating an accused or respondent, the following requisites must be present: (1) that the public officer in approving the release of public fund must be relying to a reasonable extent on his subordinates (Jaca vs. People, G.R. No. 166967, January 28, 2013); (2) that the documents involving the release of funds must be so voluminous so as to preclude him from studying each one carefully (Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010); (3) that the public officer has no foreknowledge of existing anomaly (Escara vs. People, G.R. No. 164921, July 8, 2005); and that there is not deviation from ordinary procedure in the release of fund, which necessitate further investigation (Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005; Rivera vs. People, G.R. No. 156577, December 03, 2014). City treasurer, city accountant and city administrator allowed the release of cash advance in favor of a paymaster despite the fact that she has previous unliquidated cash advances. They are liable because of conspiracy of silence or inaction. Public officers’ omissions to question irregularities indicate a common understanding and concurrence of sentiments respecting the commission of the offense of causing undue injury to the government through gross inexcusable negligence. This is called conspiracy by silence (Jaca vs. People, G.R. No. 166967,  January 28, 2013). b. Inducement by means of money - Under Section 3 (a) of RA No. 3019, a public officer, who persuades, induces or influences another public officer to perform an act constituting a violation of rules and regulations or an offense in connection with the official duties of the latter, shall be punished for corruption. However, the deliberation in the Senate regarding the bill on anti-graft shows that the mode of committing the crime under Section 3 (a) is persuading, inducing or influencing a public officer by another public officer to commit an offense or to violate rules and 47 | P a g e

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regulations by means of consideration, reward, payment or remuneration (Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006). c. Transaction or contract - Section 3 (b) of RA No. 3019 is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Preliminary investigation is not a contract or transaction within the contemplated of Section 3 (b). Hence, requesting or receiving money in connection with a preliminary investigation is not a violation of this provision (Soriano, Jr. vs. Sandiganbayan , G.R. No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice Secretary Perez, G.R. No. 188165, December 11, 2013, Bersamin). d. SALN - Failure to file SALN as required by law is a violation of Section 8 of RA No. 6713 and Section 7 of RA No. 3019 (Concerned Taxpayer vs. Doblada, A.M. No. P-99-1342, June 8, 2005). Since both laws provide a penalty for failure to file SALN, the offender should only be prosecuted and punished either under one or the other. 74. Money laundering - Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity:(a) transacts said monetary instrument or property;(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;(d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);(e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and(f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above. Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so (Section 4 of RA No. 9160 as amended by RA No. 10365). Unlawful activity refers to any act or omission or series or combination thereof involving or having direct relation to the following: (1) piracy, murder, distructive arson, kidnapping for ransom, crimes involving dangerous drugs; (2) hijacking, carnapping, fencing, robbery, qualified theft, and estafa; (3) bribery and corruption of public officers, frauds and Illegal exactions, malversation, graft and corruption, and plunder; (4) forgeries and counterfeiting; and (5) child pornography, photo-video voyeurism, child abuse, crimes involving explosives and unlicensed firearm, trafficking in person, illegal recruitment, terrorism and conspiracy to commit terrorism, and financing of terrorism and; smuggling, and illegal gambling. 75. Plunder - The elements of plunder are: First - 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. Second - That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: 1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (Example: Misuse of funds in the amount P10 million by awarding contract to a close relative, who is not the lowest bidder; Misuse of 48 | P a g e

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funds or fraud disposition of government asset to P100 million by diverting the construction of road leading to his farm instead of the poblacion). Can the Senator use the defense in malversation that he is not responsible for the misuse of his PDAP since it is the duty of the appropriate implementing agency of the government to check that the recipient of the fund is not bogus? No. Assuming that the duty to check that the recipient of the Senator’s PDAP is not bogus belongs to the appropriate agency of the government, the Senator is still liable since malversation can be committed through culpa. 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (Example: Collecting or receiving commission from the sales of Belle Shares in the amount of P189,700,000.00 which was deposited in the  Jose Velarde account and receiving bi-monthly collections from “jueteng”, a form of illegal gamblingin the aggregate amount of P545,291,000.00 of which was deposited in the Erap Muslim Youth Foundation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007). 3. By the illegal or fraudulent conveyance or disposition of assets belonging to government (Example: Ordering the GSIS and the SSS by President Estrada to purchase shares of stock of Belle Corporation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007); 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6. By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; Note: The word “combination” means at least two different predicate crimes; while the term “series” means at least two predicate crimes of the same kind ( Ejercito vs. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006). Thus, a single predicate crime amounting to 50 million pesos is not plunder. The intention of the lawmakers is that if there is only one predicate crime, the offender has to be prosecuted under the particular crime, which is already covered by existing laws. What is punishable under the law is "acts of plunder", which means that there should be at least, two or more, predicate crimes (See deliberation of the Bicameral Committee on Justice, May 7, 1991).  Third - 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).  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 49 | P a g e

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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.  There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conpiracy. Under the wheel or circle conspiracy, there is a single person or group (the "hub") dealing individually with two or more other persons or groups (the "spokes"). Under the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 2007). An illustration of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy alleged in the information for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin). In case of several individuals are charged with plunder, the law requires that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin). In the Enrile vs. People, G.R. No. 213455, August 11, 2015, if the allegation is true, the main plunder is Senator Enrile. In People vs. Estrada, the main plunderer is the hub or President Estrada. If the main plunderer is unidentified , the total amount allegedly acquired by several accused shall be divided for purposes of determining if the P50 million threshold had been reached. In GMA vs. People, G.R. No. 220598, July 19, 2016, ten persons, where charged of amassing, accumulating and acquiring ill-gotten wealth aggregating to P365,997,915.00 without identifying the main plunderer. As such, each of the 10 accused would account for the aliquot amount of only P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth, which is far below the threshold value of ill-gotten wealth required for plunder. In this situation, plunder is not committed. If the main plunderer is identified , the total amount acquired by him and his coconspirators shall be considered in determining if the P50 million threshold had been reached. For example, if GMA was identified as a main plunder, her acts and that of the other conspirators in amassing, accumulating and acquiring ill-gotten wealth aggregating to P365,997,915.00 shall be considered for purposes of determining if the P50 million threshold had been reached. In this situation, plunder is committed. In Enrile vs. People, G.R. No. 213455, August 11, 2015, it was stated that in the crime of plunder, the amount of ill-gotten wealth acquired by Senator, his assistant, and a  private individuals   in a conspiracy is immaterial for as long as the total amount amassed, acquired or accumulated by them is at least P50 million. 67. Wire-tapping - 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. The law covers even those recorded by persons privy to the private communications. The law is applicable even if the conversation being recorder pertains 50 | P a g e

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to criminal extortion (Mamba vs. Garcia, A.M. No. MTJ-96-1110, June 25, 2001). Passenger is criminally liable for violating law. On the 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. 66. Hazing - Prior to RA No. 8049, the consent of the victim to hazing and lack of intent to kill will negate dolo. Hence, the crime committed only reckless imprudence resulting in homicide (Villareal vs. People, G.R. No. 151258, February 1, 2012). Congress instead of amending RPC created a special law (RA No. 8049) to make hazing malum prohibitum, where consent of the victim and lack of intent to kill is not a defense and the mitigating circumstance of praeter intentionem shall not be appreciated (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). Organization   includes companies, PNP, AFP (People vs. Bayabos). Even the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment are covered by the law (Dungo vs. People, supra). Failure to allege that the physical or psychological harm were employed as a prerequisite for admission or entry into the organization would prevent the successful prosecution of the criminal responsibility of the accused, either as principal or as accomplice, for the crime of hazing. Plain reference to a technical term –   in this case, hazing  –   is insufficient and incomplete, as it is but a characterization of the acts allegedly committed and thus a mere conclusion of law (People vs. Bayabos). In hazing, criminal responsibility is based on (1) actual participation in inflicting physical harm and inducement, (2) presumed participation (of those who are present during the hazing), (3) the presence of adviser, (4) participation in the planning (by officers, former officers and alumni of the fraternity); (5) knowledge (of the parent of frat member in the home of whom hazing occurred, owner of the place commission, and school authorities). In the case of school authorities and faculty members who have had no direct participation in the act, they may nonetheless be charged as accomplices if it is shown that (1) hazing, as established by the above elements, occurred; (2) the accused are school authorities or faculty members; and (3) they consented to or failed to take preventive action against hazing in spite actual knowledge thereof (People vs. Bayabos).  The corresponding responsibilities of the principal, accomplice, and accessory are distinct from each other. As long as the commission of the offense (hazing) can be duly established in evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal (People vs. Bayabos).  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). 51 | P a g e

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67. Cybercrime -  The following constitute cybercrime offenses: (1) Offenses against the confidentiality, integrity and availability of computer data and systems; (2) Computer-related offenses; and (3) content-related offenses (cyber libel, cybersex and cyber child pornography). 68. Confidentiality of computer system - Offenses against the confidentiality, integrity and availability of computer data and systems are cybercrime under Section 4 of RA No. 10175. Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online. Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. Offenses against the confidentiality, integrity and availability of computer data and systems are: a. Illegal Access  –   Illegal access refer is committed by any person, who shall access to the whole or any part of a computer system without right. Ethical hackers are professionals who employ tools and techniques used by criminal hackers but would neither damage the target systems nor steal information. Since the ethical hacker does his job with prior permission from the client, such permission would insulate him from the coverage cybercrime law on illegal access (Disini vs. Secretary of  Justice, G.R. No. 203335, February 11, 2014). b. Illegal Interception – Illegal interception is committed by any person, who shall intercept by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data. c. Data Interference –  Data interference is committed by any person, who shall intentionally, or recklessly alter, damage, delete or deteriorate computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses. This is considered as cyber vandalism. d. System Interference –  System interference is committed by any person, who shall intentionally alter or recklessly hinder or interfere with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses. e. Misuse of Devices –   Misuse of devise is committed by any person, who shall use, produce, sell, procure, import, distribute, or otherwise make available, or possession with intent to use, without right any of the following: (1) a device, including a computer program, designed or adapted primarily for the purpose of committing any cybercrime; or (2) a computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any cybercrime; 52 | P a g e

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f. Cyber-squatting  –   Cyber-squatting is committed by any person, who shall acquire a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is: (a) similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; (b) identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and (c) acquired without right or with intellectual property interests in it. 69. Computer-related offense - The following are computer-related offenses: a. Computer-related forgery  - Computer-related forgery is committed by any person, who shall input, alter, or delete any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or who shall knowingly use computer data which is the product of computer-related forgery for the purpose of perpetuating a fraudulent or dishonest design. b. Computer-related Fraud  - Computer-related fraud is committed by any person, who without authority shall input, alter, or delete computer data or program or interfere in the functioning of a computer system with fraudulent intent causing damage thereby. The penalty is lower if no damage has yet been caused. c. Computer-related identity theft   - Computer-related identity theft is committed by any person, who shall intentionally acquire, use, misuse, transfer, posses, alter or delete identifying information belonging to another, whether natural or  juridical, without right. The penalty is lower if no damage has yet been caused. Using the name of another person and his pictures in opening a facebook account without authority constitutes cybercrime offense. 71. Content-related offenses - Content-related offenses includes cyber libel, cybersex and cyber child pornography. A prosecution for cybercrime offenses shall be without prejudice to any liability for violation of any provision of the Revised Penal Code or special laws (Section 7). Despite of Section 7, the offender cannot be prosecuted for cyber libel or cyber child pornography under RA No. 10175 in addition to libel under RPC or child pornography under RA No. 9775 since this will offend the constitutional rule on double jeopardy (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014). a. Cyber libel  –  Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually not a new crime since Article 353, in relation to Article 355 of the Revised Penal Code, already punishes it. Online defamation constitutes “similar means” for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335, Febru ary 18. 2014). Cyber libel is an unlawful or prohibited act of libel as defined in Article 355 of RPC committed through a computer system or any other similar means which may be devised in the future. In case libel is committed through use of information and communications technologies, the penalty for libel under Article 355 of RPC shall be increased one degree higher pursuant to Section 6 of RA No. 10175.  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 53 | P a g e

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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). b. Cybersex –   Cybersex under RA No. 10175 is committed by any person, who shall wilfully engage, maintain, control, or operate, directly or indirectly, any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.  The element of "engaging in a business" is necessary to constitute the illegal cybersex. The law actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam. The deliberations of the Bicameral Committee of Congress show a lack of intent to penalize a "private obscene showing between two private persons although. (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014). If the commission of cybersex involves lascivious exhibition of sexual organs or sexual activity of a child, the offender may be prosecuted for child pornography under RA No. 9775 qualified by the circumstance of using computer system under RA No. 10175. However, the offender cannot be prosecuted for both cybersex and qualified (or cyber) child pornography because of the rule on double jeopardy (Disini vs. Secretary of Justice, G.R. No. 203335, February 11, 2014). If the commission of cybersex involves the maintenance of trafficked victim, the offender may be prosecuted for trafficking in person under RA No. 9208. c. Cyber child pornography -  In RA No. 9208 child pornography is

committed by electronic, mechanical, digital, optical, magnetic or any other means , responsible persons are liable for child pornography under RA No. 9775. RA No. 9775 is comprehensive enough to include cyber pornography by requiring a child to show her private parts to a client through the internet. If child pornography is committed through a computer system, the crime committed is cyber child pornography under RA No. 10175 and the penalty is one degree higher. 72. SPAM - Unsolicited commercial communications is committed by any person, who shall transmit commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services.  Transmission of unsolicited commercial communications is also known as "spam." In Disini case, the provision of RA No. 10175 prohibiting spam is declared unconstitutional. It was held that to prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him. The State cannot rob him of this right without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression. 73. Other cybercrime offense - Other cybercrime offense is also committed by any person who shall wilfully abet or aid in the commission of any of the cybercrime offenses or any person who wilfully attempts to commit any of the cybercrime offenses (Section 5).  The provision on aiding or abetting cybercrime in relation to cyber libel, child pornography and unsolicited commercial communication was declared unconstitutional in the Disini   case. The terms "aiding or abetting" constitute broad sweep that generates chilling effect on those who express themselves through cyberspace posts, comments, and other messages. Hence, this provision that punishes "aiding or abetting" libel on the cyberspace is a nullity since it encroaches upon freedom of speech on grounds of overbreadth or vagueness of the statute. 54 | P a g e

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