NOTES IN CRIMINAL LAW

Commissioner Reynold S. Munsayac

Elements of Treachery

Treachery exists when the following elements are present: (a) at the time of the attack, the
victim was not in a position to defend himself; and (b) the accused consciously and deliberately
adopted the particular means, methods, or forms of attack employed by him. Thus, it is not sufficient
that the victim was unable to defend himself. The Prosecution must show that the accused
consciously adopted such mode of attack to facilitate the perpetration of the killing without risk to
himself. (Rustia vs. People, 5 October 2016, J. Bersamin)

No Treachery in Chance Encounters

Chance encounters, traffic altercation killings, or crimes committed at the spur of the moment
or those that were preceded by heated altercations are generally not attended by treachery for lack
of opportunity of the accused to deliberately employ a treacherous mode of attack. For the rules on
treachery to apply, the attack must have been preconceived by the accused, unexpected by the
victim and without provocation on the part of the latter. (People vs. Gonzales, G.R. No. 139542, 21
June 2001)

Two kinds of unlawful aggression

Unlawful aggression is of two kinds: (a) 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; (b) Imminent unlawful aggression means an attack that is
impending or at the point of happening and 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). It
cannot be a mere threatening attitude, such as pressing the right hand to his hip where a revolver
was holstered, accompanied by an angry countenance, or like aiming to throw a pot. (People vs.
Fontanilla, 25 January 2012, J. Bersamin)

Mitigating Circumstance of Old Age

The mitigating circumstance of old age under the Revised Penal Code applies only when the
offender was over seventy (70) years at the time of the commission of the offense. His age during
the promulgation of judgment is, thus, immaterial. (Reyes vs. People, 4 August 2010, J. Bersamin)

Single Witness Sufficient in Rape

Rape is essentially an offense of secrecy, not generally attempted except in dark or deserted
and secluded places away from prying eyes, and the crime usually commences solely upon the word
of the offended woman herself and conviction invariably turns upon her credibility, as the
prosecution's single witness of the actual occurrence. (People vs. Molleda, G.R. No. 153219, 1
December 2003) Thus, even an uncorroborated testimony of a single witness, if positive and credible,
is enough to warrant conviction. (People vs. Borce, G.R. No. 124131, 22 April 1998)

Child witness in Rape cases

Every child of sound mind with the capacity to perceive and make known his perception can
be believed in the absence of any showing of an improper motive to testify. Once it is established that
the child fully understands the character and nature of an oath, the testimony in a rape case is given
full credence. (People vs. Magbitang, 14 June 2016, J. Bersamin)

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Inability to Give Consent to Sexual Intercourse

The absence of will determines the existence of the rape. Such lack of will may exist not only
when the victim is unconscious or totally deprived of reason, but also when she is suffering some
mental deficiency impairing her reason or free will. Carnal knowledge of a woman so weak in intellect
as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded,
sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act
did not mean consent for she was incapable of giving any rational consent. (People vs. Butiong, 19
October 2011, J. Bersamin)

Gender-Free Rape

It is rape by sexual assault under RA 8353 where the offender inserted an instrument or object
into the genital or anal orifice of another person. It is called as such since the crime is not conditioned
upon any specific gender of both the offender and the offended party. (People vs. Soria, 14
November 2012)

Attempted rape and acts of lasciviousness

The intent of the offender to lie with the female defines the distinction between attempted
rape and acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts
of lasciviousness does not. (Cruz vs. People, 8 October 2014, J. Bersamin)

Elements of Qualified Seduction

1. The offended party is a virgin;

2. She must be over 12 and under 18 years of age;
3. The offender has sexual intercourse with her; and,
4. There is abuse of authority, confidence or relationship on the part of the offender.
(Article 337, Revised Penal Code)

Deceit is not an element of Qualified Seduction. It is also not required that the offended party
is the actual student of the offender since it is already sufficient that offender is a teacher in the same
school. Lastly, the consent given by the party to the sexual intercourse is immaterial since what is
being punished here is the abuse of authority confidence or relationship.

Elements of Simple Seduction

1. The offended party is over 12 and under 18 years of age;

2. She must be of good reputation, single or widow;
3. The offender has sexual intercourse with her; and,
4. It is committed by means of deceit. (Article 338, Revised Penal Code)

Virginity of the offended party is not required in this offense. Deceit is normally the unfulfilled
promise of marriage made by the offender. Deceit in promise of material things is not punishable as
seduction. The promise of marriage of a married man and the promise of marriage made after sexual
intercourse are not considered deceit for purposes of simple seduction.

Republic Act No. 9262 Constitutionality

R.A. 9262 does not violate the guaranty of equal protection of the laws. The unequal power
relationship between women and men; the fact that women are more likely than men to be victims
of violence; and the widespread gender bias and prejudice against women all make for real
differences justifying the classification under the law. (Garcia vs. Drilon, 25 June 2013)

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Conspiracy Applicable to RA 9262

The principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and the
precise extent or modality of participation of each of them becomes secondary, since all the
conspirators are principals. (Sharica Mari L. Go-Tan vs. Spouses Perfecto and Juanita Tan, G.R. No.
168852, 30 September 2008)

Relationship need not be Existing During the Time of the Abuse

While it is required that the offender has or had a sexual or dating relationship with the
offended woman, for RA 9262 to be applicable, it is not indispensable that the act of violence be a
consequence of such relationship. It is immaterial whether the relationship had ceased for as long as
there is sufficient evidence showing the past or present existence of such relationship between the
offender and the victim when the physical harm was committed. (Dabalos vs. RTC 59, 7 January 2013)

Bouncing Checks Law (BP 22)

Written Notice of Dishonor

The notice of dishonor required by BP22 should be written. If the service of the written notice
of dishonor on the maker, drawer or issuer of the dishonored check is by registered mail, the proof of
service consists not only in the presentation as evidence of the registry return receipt but also of the
registry receipt together with the authenticating affidavit of the person mailing the notice of
dishonor. (Resterio vs. People, 24 September 2012, J. Bersamin)

Ownership not Required

What BP22 punished was the mere act of issuing a worthless check. The law did not look
either at the actual ownership of the check or of the account against which it was made, drawn, or
issued, or at the intention of the drawee, maker or issuer. The law is broad enough to include, within
its coverage, the making and issuing of a check by one who has no account with a bank. (Resterio vs.
People, 24 September 2012, J. Bersamin)

Tender without Receipt Acknowledgment

Once the notice of dishonor was tendered and served upon the offender, it already satisfies
the requirement of law even if the offender refused to sign the same. To require the prosecution to
produce the signature of the accused on said demand letter would be imposing an undue hardship on
it. (Mitra vs. People, G.R. No. 191404, 5 July 2010)

Deceit Required in Estafa

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, 25 February
2015, J. Bersamin)

Dangerous Drugs Act, RA No. 9165

Chain of Custody

Chain of Custody means the duly recorded authorized movements and custody of seized drugs
or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage,
from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. (People vs. Del Rosario, 5 December 2012)

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Required Inventory

The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, conduct physically inventory and photograph the same in the presence of
the accused or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of
the inventory and be given a copy thereof. (Section 21, RA 9165)

The State bears the burden of establishing the chain of custody of the dangerous drugs
confiscated during a buy-bust operation. The evidence of the chain of custody must meet the test of
proof beyond reasonable doubt. If the arresting offices will not offer any valid explanation for non-
compliance with the requirement of inventory, it should result in acquittal. (People vs. Angngao, 11
March 2015, J. Bersamin)

Plea Bargaining Allowed

Plea-bargaining is now allowed in drugs cases. Section 23 of RA 9165 prohibiting plea-

bargaining in drugs cases is declared unconstitutional for being an intrusion into the exclusive rule-
making power of the Supreme Court. (Estipona v. Lobrigo, G.R. 226679, 15 August 2017)

Human Security Act (RA 9372)

The overbreadth and the vagueness doctrines have special application only to free-speech
cases and are not appropriate for testing the validity or constitutionality of penal statutes. (Southern
Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, G.R. No. 178552, 5 October 2010)

Principal by Inducement in the Act of Bombing

A person will be liable as principal by inducement if he was "so influential in producing the
criminal act that without it, the act would not have been performed. Giving instructions and training
a person on how to make bombs, coupled with careful planning and persistent attempts to bomb
different areas in Metro Manila, would make the teacher a principal by inducement as his
instruction was the determining cause of the commission of the crime, and without it, the crime
would not have materialized. (People vs. Janjalani, 10 January 2011)

Robbery with Homicide is an Indivisible Offense

A conviction for robbery with homicide only requires that the robbery is the main purpose and
objective of the malefactor and the death or killing is merely incidental to the robbery. A conviction
for robbery with homicide is proper even if the homicide is committed before, during or after the
commission of the robbery.

The homicide may be committed by the actor at the spur of the moment or by mere accident.
Robbery with homicide is committed even if the victim of the robbery is different from the victim of
homicide, as long as the homicide is committed by reason or on the occasion of the robbery. It is not
even necessary that the victim of the robbery is the very person the malefactor intended to rob.
(People vs. Daniela, 24 April 2003)

Robbery under the RPC and Highway Robbery under PD 532

Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery
perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as
defined therein, and not acts of robbery committed against a predetermined victim. If the robbers
have a specific target as their victim, it is robbery under the RPC and not under PD 532 even if the
same was committed on a Philippine highway. (Abay vs. People, 19 September 2008)

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Anti-Hazing Law (RA 8049)

Hazing is an initiation rite or practice as a prerequisite for admission into membership in a

fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing
or humiliating situations such as forcing him/her to do menial, silly, foolish and similar tasks or
activities or otherwise subjecting him/her to physical or psychological suffering or injury.

Required allegation in the Information for Hazing

The indictment merely states that psychological pain and physical injuries were inflicted on
the victim. There is no allegation that the purported acts were employed as a prerequisite for
admission or entry into the organization. Failure to aver this crucial ingredient would prevent the
successful prosecution of the criminal responsibility of the accused, either as principal or as
accomplice, for the crime of hazing. (Bayabos vs. People, 18 February 2015)

Hazing is not Illegal Per Se

Hazing is not prohibited under the law provided that there is (a) prior written notice to the
school authorities or head of organization seven days before the conduct of such initiations; (b) the
written notice shall indicate the period of the initiation activities which shall not exceed three days,
shall include the names of those to be subjected to such activities, and (c) shall further contain an
undertaking that no physical violence be employed by anybody during such initiation rites. Physical
violence and physical harm (like punching) is prohibited, but infliction of physical suffering without
violence and without resulting injuries (like push-ups and jogging) are not expressly prohibited.

The Anti-Hazing Law is an offense mala prohibita

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and robust in
penalizing the crime of hazing. It was made malum prohibitum to discount criminal intent and
disallow the defense of good faith. (Dungo vs. People, 1 July 2015)

Hazing is an Offense of Secrecy

Through careful case-build up and proper presentation of evidence before the court, it is not
impossible for the exalted constitutional presumption of innocence of the accused to be overcome
and his guilt for the crime of hazing be proven beyond reasonable doubt. The prosecution must bear
in mind the secretive nature of hazing, and carefully weave its chain of circumstantial evidence.
(Dungo vs. People, 1 July 2015)

Anti-Graft and Corrupt Practices Act (Republic Act No. 3019)

Definition Public Officer

It is well established that compensation is not an essential element of public office. At most, it
is merely incidental to the public office. Delegation of sovereign functions is essential in the public
office. An investment in an individual of some portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public makes one a public officer. (Serana vs.
Sandiganbayan, G.R. No. 162059, 22 January 2008)

Bad Faith must be Established

Under Section 3 (e) of R.A. No. 3019, the State must prove the following essential elements,
namely: 1. The accused is a public officer; 2. He acted with manifest partiality, evident bad faith, or
gross inexcusable negligence; and; 3. His action caused any undue injury to any party or gave any
private party unwarranted benefits, advantage or preference. If the Barangay Chairman acted upon

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the honest and sincere belief that (in removing the fence) he was then summarily abating the
nuisance that a regular user of the obstructed road had just reported to him, he will not be criminally
liable. (Giangan vs. People, 26 August 2015, J. Bersamin)

Office Covered by Suspension

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the acts with which he has been
charged. Thus, it has been held that the use of the word office would indicate that it applies to any
office which the officer charged may be holding, and not only the particular office under which he
stands accused. (Defensor-Santiago vs. Sandiganbayan, G.R. No. 128055, 18 April 2001)

Inordinate Delay Concept

Inordinate delay in resolving a criminal complaint is violative of the constitutionally

guaranteed right to due process and to the speedy disposition of cases, which warrants the dismissal
of the criminal case. The preliminary investigation proceedings in said case took more than 11 long
years to resolve. There was already inordinate delay that justifies the dismissal of the case. (Almeda
vs. People, 25 July 2016)

Plunder (RA 7080)

Jurisdiction over Plunder Cases

Under Republic Act No. 8249, the Sandiganbayan has jurisdiction over accused public officials
only when they occupy positions corresponding to Salary Grade 27 or higher. Thus, RA 7080, insofar
as it provided that all prosecutions for plunder fell within the Sandiganbayans jurisdiction, was
impliedly repealed by RA 8249. (Organo vs. Sandiganbayan, G.R. No. 136916, 14 December 1999)

Wheel and Chain Conspiracy

The wheel conspiracy occurs when there is a single person or group (the hub) dealing
individually with two or more other persons or groups (the spokes). Chain conspiracy exists when
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. (Arroyo vs. People, 19 July 2016)

Required Main Plunderer

The Prosecution did not allege that the conspiracy among all of the accused was by express
agreement, or was a wheel conspiracy or a chain conspiracy. The law requires in the criminal charge
for plunder against several individuals that there must be a main plunderer and her co-conspirators.
In other words, the allegation of the wheel conspiracy or express conspiracy in the information was
appropriate because the main plunderer would then be identified in either manner. (Arroyo vs.
People, 19 July 2016)

Modes of Committing Malversation

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. All that is necessary for a conviction is sufficient
proof that the accused accountable officer had received public funds or property, and did not have
them in his possession when demand therefor was made without any satisfactory explanation of his
failure to have them upon demand. For this purpose, direct evidence of the personal
misappropriation by the accused is unnecessary as long as he cannot satisfactorily explain the
inability to produce or any shortage in his accounts. (Mesina vs. People, 17 June 2015, J. Bersamin)

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Elements of Technical Malversation

The crime of technical malversation as penalized under Article 220 of the Revised Penal Code
has three elements: a) that the offender is an accountable public officer; b) that he applies public
funds or property under his administration to some public use; and c) that the public use for which
such funds or property were applied is different from the purpose for which they were originally
appropriated by law or ordinance. (Ysidoro vs. People, 14 November 2012)

There is no complex crime of estafa through falsification of private document

If the falsification of a private document is committed as a means to commit estafa, the

proper crime to be charged is falsification only. If the estafa can be committed without the necessity
of falsifying a document, the proper crime to be charged is estafa only. Only falsification of public
document may be complexed with estafa since they have different elements. (Batulanon vs. People,
G.R. No. 139857, 15 September 2006)

Theft should not be Confused with Estafa

The principal distinction between the two crimes is that in theft the thing is taken while in
estafa the accused receives the property and converts it for his own benefit. However, there may be
theft even if the accused has possession of the property. If he was entrusted only with the material
or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has
the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa
only. (Santos vs. People, 29 January 1990)

No Double Jeopardy in Illegal Recruitment and Estafa

An illegal recruiter can be liable for both the crimes of illegal recruitment committed in large
scale and estafa without risk of being put in double jeopardy, provided that the accused has been so
charged under separate informations. (People vs. Bayker, 10 February 2016, J. Bersamin)

Single Criminal Information for Criminal Negligence

Although the rules on complex crime do not apply to offenses through negligence,
prosecutions under Article 365 should proceed from a single charge regardless of the number or
severity of the consequences. In short, only one criminal Information should be filed. By prohibiting
the splitting of charges under Article 365, rampant occasions of constitutionally impermissible second
prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to
proper use. (Jason Ivler vs. Hon. Modesto-San Pedro, 17 November 2010)

Criminal Negligence on Medical Malpractice

Res ipsa loquitur does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. In order to allow resort to the doctrine, the following essential requisites must first be
satisfied: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency that caused the injury was under the exclusive control of the person
charged; and (3) the injury suffered must not have been due to any voluntary action or contribution
of the person injured. (Solidum vs. People, 10 March 2014, J. Bersamin)

-end-