Pointers in Criminal Law

2019 Bar Examinations

Based on General Principles and
Decisions penned by Justice Perlas-Bernabe
By Atty. Victoria V. Loanzon
with the assistance of Attorneys Den De Silva
and Jelena Sebastian (DLSU –COL, BGC Campus)

Q. What is the nature and scope of Criminal Law?

Answer: The nature and scope of Criminal Law are: (1) Generality – will apply to people who
commit any criminal act committed within the territory of the Philippines and will generally
deal with the characteristic of the person accused of committing the crime;
(2) Territoriality – Philippines will have jurisdiction over crimes committed inside its territory
except as provided for in treaties and laws of preferential application and will normally deal
with the characteristic of the place where the crime was committed; and
(3) Prospectivity – based on Art. 22 of RPC, the appreciation of the crime committed must take
into consideration the date of the passage of the law and give it retroactive effect (a) if it is
favorable to the accused; and (b) if the accused is not a habitual delinquent.

Q. Cite the distinction between mala in se and mala prohibitum.

Answer: The distinctions are:
(1) in mala in se by itself the act is inherently wrong (ex. killing another person) while in mala
prohibitum the act is merely prohibited by law (ex. smoking or jay walking);
(2) good faith is a defense in mala in se but not in mala prohibitum;
(3) stages of commission under Art.6 of RPC are considered in mala in se but not in mala
prohibitum;
(4) degree of participation under Title II of RPC is considered in mala in se but not in mala
prohibitum;
(5) in mala in se, modifying circumstances are considered in determining imposable penalty but
not mala prohibitum; and
(6) in mala in se, generally, the crimes are punished under RPC while generally, crimes
considered mala prohibitum are punished under special penal laws.
Note: “[I]llegal possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs during parties, social gatherings or meetings under Section 14 of R.A. No. 9165
is a crime of malum prohibitum, that is, the act is made wrong or evil because there is a law
prohibiting it.”
Since violation of Section 14 of R.A. No. 9165 is a crime of mala prohibita, the degree of
participation of the offenders is not considered. All who perpetrated the prohibited act are
penalized to the same extent. There is no principal or accomplice or accessory to consider. In
short, the degree of participation of the offenders does not affect their liability, and the penalty
on all of them are the same whether they are principals or merely accomplices or accessories.
(Citing Boado, Notes and Cases on the Revised Penal Code, 2008 edition)

Q. What is aberratio ictus?

Answer: Aberratio ictus is mistake in the blow where the offender intends the injury on one
person but the harm fell on another. There are three persons present: the offender, the intended
victim and the actual victim. The act may result in a complex crime or in two or more separate
felonies depending on whether the resulting felonies are grave, less grave or light.

Q. What is error in Personae?

Answer: Error in Personae is mistake in the identity of the victim. There is only one offended
party but the offender committed a mistake in ascertaining the identity of the victim. Art. 49 of
the RPC shall govern which provides that the imposable penalty would depend on whichever has
the lower penalty between the crime committed and the crime intend.

Q. What is Praeter Intentionem?

Answer: Praeter Intentionem occurs when the injury is on the intended victim but the resulting
consequence is so grave a wrong than what is intended. Generally, it is a mitigating
circumstance.

Q. E was having a drinking spree with a certain B. It was alleged that V encountered E who
suddenly poked him with an iron pipe, which turned out to be a homemade firearm or sumpak.
E fired the sumpak and fallen hit the latter's head twice. Thereafter, E hastily left.

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During trial, E admitted having shot L but claimed self-defense. He averred that on the date and
time in question, L suddenly approached, boxed, and threatened to kill him. Thereafter, L went
inside his office and upon his return, E saw L pointing a sumpak at him. They struggled for the
possession of the weapon and it was when E finally took hold of it that he fired at L. When E saw
that L had fallen to the ground, he immediately left the place and went into hiding until he was
finally arrested in Tanay, Rizal. Was there a valid self-defense on the part of Ernie?
Answer: There was no valid self-defense. The elements of self-defense are: (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means employed to
prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending
himself. The requisite unlawful aggression from the victim, L, is absent. Instead, it was E who
was the aggressor, having fired the sumpak at L when they crossed paths by the side of the road,
and when the latter had fallen to the ground, hit his head twice with the said weapon. (People v.
Orense, G.R. No. 21338, June, 22, 2015)

Q. Distinguish entrapment from instigation.

Answer: Instigation is the means by which the accused is lured into the commission of the
offense charged in order to prosecute him. On the other hand, entrapment is the employment of
such ways and means for the purpose of trapping or capturing a lawbreaker. Thus, in
instigation, officers of the law or their agents incite, induce, instigate or lure an accused into
committing an offense which he or she would otherwise not commit and has no intention of
committing. But in entrapment, the criminal intent or design to commit the offense charged
originates in the mind of the accused, and law enforcement officials merely facilitate the
apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify
his or her conduct. In instigation, where law enforcers act as co-principals, the accused will have
to be acquitted. But entrapment cannot bar prosecution and conviction. As has been said,
instigation is a "trap for the unwary innocent," while entrapment is a "trap for the unwary
criminal."
As a general rule, a buy-bust operation, considered as a form of entrapment, is a valid means of
arresting violators of Republic Act No. 9165. It is an effective way of apprehending law offenders
in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates
from the offender, without anybody inducing or prodding him to commit the offense.
(People v. Bayani, G.R. No. 179150, June 17, 2008, 554 SCRA 741, 748-751, People v. Legaspi,
710 SCRA 28, citing People v. Pacis, 434 Phil. 148, 157-158 [2002])

Q. N claimed self-defense when he killed G. What will merit a claim of self-defense?

Answer: The burden to establish his plea of self-defense must be established by credible, clear
and convincing evidence; otherwise, his conviction will follow from his admission of killing the
victim. Self-defense cannot be justifiably appreciated when it is uncorroborated by independent
and competent evidence or when it is extremely doubtful by itself. Indeed, the accused must
discharge the burden of proof by relying on the strength of his own evidence, not on the
weakness of the State’s evidence, because the existence of self-defense is a separate issue from
the existence of the crime, and establishing self-defense does not require or involve the negation
of any of the elements of the offense itself. (People v. Nugas 661 SCRA 159, 23 November 2011)

Q. R and his granddaughter, 2-year old M were in the terrace of their house when U suddenly
came and attacked R with a panabas. R was able to evade the blows, but M was hit on her
abdomen and back causing her death. Upon seeing M bloodied, U walked away.
U then went to the next house where his nephew J was sleeping. J was awakened by the
commotion and saw his uncle charging towards him. He, along with his sister and cousin rushed
to a room, but J was cornered by U. U only left when he saw J, who pretended to be dead,
bloodied and leaning on the wall.
During trial, U set up the defense of insanity but did not take the witness stand. Dr. Q stated that
U was manifesting psychotic symptoms during May 2002, February 2003 and March 2003.
However, he could not tell with certainty whether U was psychotic at the time of the commission
of the crimes. Will U’s defense of insanity prosper?
Answer: No, U’s defense will not prosper. The defense of insanity is in the nature of confession
and avoidance because an accused invoking the same admits to have committed the crime, but
claims that he or she is not guilty because of such insanity. As there is a presumption in favor of
sanity, anyone who pleads the said defense bears the burden of proving it with clear and
convincing evidence.
Dr. Q’s testimony only showed that he evaluated U’s mental condition in May 2002, February
2003, and March 2003 and did prove U’s insanity. U’s defense of insanity remained
unsubstantiated. (People v. Umawid, G.R. No. 208719, June 09, 2014)

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Q. Is the qualifying circumstance of treachery present in both incidents?
Answer: Yes, treachery was present in both incidents. While it was not shown that U consciously
employed treachery so as to insure the death of M, who was then just two (2) years old at the
time, it is well to reiterate that the killing by an adult of a minor child is treacherous, and thus,
qualifies M’s killing to Murder. The killing of a child is characterized by treachery even if the
manner of the assault is not shown because the weakness of the victim due to her tender age
results in the absence of any danger to the accused.
There was also treachery in the case of J. While it is true that treachery may also be appreciated
even when the victim was warned of the danger to his person and what is decisive is that the
execution of the attack made it impossible for the victim to defend himself or to retaliate, a
review of the factual circumstances herein would reveal that it was not impossible for J to put up
a defense against U’s attacks.

Q. What is the essence of treachery as an attending circumstance?

Answer: The essence of treachery is the sudden and unexpected attack, without the slightest
provocation on the part of the party attacked. The qualifying circumstance may still be
appreciated if the attack was so sudden and so unexpected that the deceased had no time to
prepare for his or her defense. (People v. Samuya, G.R. No. 213214, |April 20, 2015)
Treachery is present when the offender commits any of the crimes against person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution without risk to himself arising from the defense which the offended party might make.

Q. What are the requisites of treachery?

Answer: The requisites of treachery are:
1. That at the time of the attack, the victim was not in a position to defend himself
2. That the offender consciously adopted the particular means, method or form of attacked
employed by him (People vs. Cantonjos, GR No. 136748, Nov. 21, 2001)

Q. Can treachery exist in a face to face attack?

Answer: Yes, treachery should be taken into account even if the deceased was face to face with
his assailant at the time that the blow was delivered if it appears that the attack was not
preceded by a dispute and that the offended party was unable to prepare himself for the
defense (US vs. Cornejo, GR No. 9773, Nov. 20, 1914)
Even if the attack was frontal, if it was done so suddenly and unexpectedly, it is considered as
treachery. (People v. Samuya, infra)
In People v. Perez, it was explained that a frontal attack does not necessarily rule out treachery.
The essence of treachery is the sudden and unexpected attack, without the slightest provocation
on the part of the party attacked. Although the attack was frontal, the sudden and unexpected
manner by which it was made rendered it impossible for the victim to defend himself, adding
too that he was unarmed. (People v. Matibag, G.R. No. 206381, March 25, 2015)

Q. When may an unlicensed firearm be considered as an aggravating circumstance in the

commission of a crime?
Answer: Under Section 1 of RA 8294, if homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating
circumstance. There are two (2) requisites to establish such circumstance, namely: (a) the
existence of the subject firearm; and (b) the fact that the accused who owned or possessed the
gun did not have the corresponding license or permit to carry it outside his residence. (Manny
Ramos v. People, G.R. No. 218466, January 23, 20170)

Q. Who has the burden of proof in establishing the criminal liability for use of unlicensed
firearm?
Answer: The onus probandi of establishing the foregoing elements as alleged in the Information
lies with the prosecution. While it is undisputed that the victim sustained five (5) gunshot
wounds which led to his demise, it is unclear from the records: (a) whether or not the police
officers were able to recover the firearm used as a murder weapon; and (b) assuming arguendo
that such firearm was recovered, whether or not such firearm was licensed. Having failed in this
respect, the Court cannot simply appreciate the use of an unlicensed firearm as an aggravating
circumstance.

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Q. What is the reason why a justifying circumstance exonerates the accused?
Answer: A justifying circumstance affects the act, not the actor. The act is considered to have
been done within the bounds of law, hence, legitimate and lawful in the eyes of the law. Since
the act is considered lawful, there is no crime. Where there is no crime, there is no criminal
liability and no civil liability except under paragraph 4. It contemplates unintentional acts and
hence incompatible with dolo.

Q. What is an exempting circumstance?

Answer: An exempting circumstance affects the actor, not the act. The act complained of is
actually wrongful, but the actor is not liable since the act complained of is actually wrong. There
is a crime but since the actor acted without voluntariness, there is neither dolo or culpa. There is
a crime but there is no criminal liability but there is civil liability (except par 4). It may be
invoked in culpable felonies.

Q. Distinguish generic aggravating circumstance from qualifying aggravating circumstance.

Answer. Generic aggravating circumstance increases the penalty which should be imposed upon
the accused to the maximum period but without exceeding the limit prescribed, while qualifying
aggravating circumstance gives the crime its proper and exclusive name and places the author
thereof in such a situation as to deserve no other penalty than that specially prescribed by law
for said crime. Moreover, the former may be offset by an ordinary mitigating circumstance,
whereas the latter cannot be offset by an ordinary mitigating circumstance since it is considered
as an ingredient of the crime.

Q. How is intent to kill established in the crime of murder?

Answer: To successfully prosecute the crime of murder, the following elements must be
established:
(1) that a person was killed;
(2) that the accused killed him or her;
(3) that the killing was attended by any of the qualifying circumstances mentioned in Article 248
of the Revised Penal Code; and
(4) that the killing is not parricide or infanticide. (People vs. Las Piñas 730 SCRA 571, 23 July
2014)
The intent to kill by the accused was clearly established by the nature and number of wounds
sustained by their victims. Evidence to prove intent to kill in crimes against persons may consist,
among other things, of the means used by the malefactors; the conduct of the malefactors
before, at the time of, or immediately after the killing of the victim; and the nature, location and
number of wounds sustained by the victim. (Rodolfo Guevarra and Joey Guevarra vs. People of
the Philippines, G.R. No. 170462, 05 February 2014)

Q. Distinguish between Death Caused in a Tumultuous Affray and Homicide.

Answer: Article 251 of the RPC defines and penalizes the crime of Death Caused in a
Tumultuous Affray as when, while several persons, not composing groups organized for the
common purpose of assaulting and attacking each other reciprocally, quarrel and assault each
other in a confused and tumultuous manner, and in the course of the affray someone is killed,
and that it cannot be ascertained who actually killed the deceased.
On the other hand, the crime of Homicide, as defined and penalized under Article 249 of the
RPC, states that a person was killed, where the accused killed him without any justifying
circumstance, that had the intention to kill, which is presumed; and the killing was not attended
by any of the qualifying circumstances of Murder, or by that of Parricide or Infanticide. (Wacoy
v. People, G.R. No. 213792, June 22, 2015)

Q. What is the probative value of out-of-court identification of the accused?

Answer: The following ruling of the Court in People vs. Teehankee, Jr. is instructive on the
conduct of and test for a valid out–of–court identification: Out–of–court identification is
conducted by the police in various ways:
1) It is done thru show–ups where the suspect alone is brought face to face with the witness for
identification.
2) It is done thru mug shots where photographs are shown to the witness to identify the suspect.
3) It is also done thru line–ups where a witness identifies the suspect from a group of persons
lined up for the purpose.

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Since corruption of out–of–court identification contaminates the integrity of in–court
identification during the trial of the case, courts have fashioned out rules to assure its fairness
and its compliance with the requirements of constitutional due process.
In resolving the admissibility of and relying on out–of–court identification of suspects, courts
have adopted the totality of circumstances test where they consider the following factors, viz: (1)
the witness’ opportunity to view the criminal at the time of the crime;
(2) the witness’ degree of attention at that time;
(3) the accuracy of any prior description given by the witness;
(4) the level of certainty demonstrated by the witness at the identification;
(5) the length of time between the crime and the identification; and,
(6) the suggestiveness of the identification procedure. (See Neil vs. Biggers, 409 US 188 [1973];
Manson vs. Brathwaite, 432 US 98 [1977]; Del Carmen, Criminal Procedure, Law and
Practice, 3rd Edition, p. 346)

Q. W claimed alibi as a defense in the case for rape with homicide against him and his co-
accused. A, the star witness of the prosecution, however, testified in open court and identified W
as having committed. What are the criteria to establish positive identification.
Answer: To be acceptable, the positive identification must meet at least two criteria:
First, the positive identification of the offender must come from a credible witness. The witness
is credible who can be trusted to tell the truth, usually based on past experiences with him. His
word has, to one who knows him, its weight in gold; and
Second, the witness’ story of what he personally saw must be believable, not inherently
contrived. A witness who testifies about something he never saw runs into inconsistencies and
makes bewildering claims. (People v. Webb, G.R. No. 176864, December 14, 2010)

Q. If alibi is successfully proven by W, one of the accused, what is the effect of this defense upon
his co-accused?
Answer: W’s documented alibi altogether impeaches A's testimony, not only with respect to him,
but also with respect to L, E, F, G, R, and B. For, if the Court accepts the proposition that W was
in the U.S. when the crime took place, A’s testimony will not hold together. W’s participation is
the anchor of A’s story. Without it, the evidence against the others must necessarily fall.
To establish alibi, the accused must prove by positive, clear, and satisfactory evidence that:
(a) he was present at another place at the time of the perpetration of the crime, and (b) that it
was physically impossible for him to be at the scene of the crime. (People v. Webb, ibid.)

Q. May a person convicted of a crime involving moral turpitude suffering the penalty of
reclusion perpetua precluded to file a Certificate of Candidacy?
Answer: A person convicted of a crime involving moral turpitude is precluded to file a Certificate
of Candidacy. Article 41 of the RPC expressly states that one who is previously convicted of a
crime punishable by reclusion perpetua or reclusion temporal continues to suffer the accessory
penalty of perpetual absolute disqualification even though pardoned as to the principal penalty,
unless the said accessory penalty shall have been expressly remitted in the pardon. The use of
the word “perpetual” in the aforementioned accessory penalty connotes a lifetime restriction
and in this respect, does not depend on the length of the prison term which is imposed as its
principal penalty. Further, it is well to note that the use of the word “perpetual” in the
aforementioned accessory penalty connotes a lifetime restriction and in this respect, does not
depend on the length of the prison term which is imposed as its principal penalty. (Jalosjos v.
COMELEC, G.R. No. 205033, June 18, 2013)

Q. Accused-appellant had died pending his appeal at the New Bilibid Prison Hospital. Will the
criminal action, as well as the civil action for the recovery of the civil liability ex delicto ipso
facto extinguished in lieu of accused appellant's death pending his appeal?
Answer: The death of the accused prior to final judgment terminates his criminal liability and
only the civil liability directly arising from and based solely on the offense committed.
Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the
same may also be predicated on a source of obligation other than delict.
The accused-appellant's civil liability based on sources other than the subject delict survives,
and the victim may file a separate civil action against the estate of accused-appellant, as may be
warranted by law and procedural rules. (People v. Dimaala, G.R. No. 225054, July 17, 2017)

Note: Art. 89. How criminal liability is totally extinguished. -Criminal liability is totally
extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties,

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liability therefor is extinguished only when the death of the offender occurs before final
judgment; x x x x”

Q. What is the effect on the accused’s civil liability of an acquittal based on reasonable doubt?
Answer: An extinction of the penal action does not carry with it the extinction of the civil liability
where the acquittal is based on reasonable doubt as only preponderance of evidence, or "greater
weight of the credible evidence," is required. Thus, an accused acquitted of estafa may still be
held civilly liable where the facts established by the evidence so warrant (Diaz v. People, G.R.
No. 208113, December 02, 2015)

Q. What are preparatory acts of a person in the commission of an offense?

Answer: Preparatory acts of a person are those initial acts when he has conceived the idea of
committing a crime but which cannot by themselves logically and necessarily ripen into a
concrete offense. They are not even an overt act and hence, they do not constitute the attempted
stage of the acts of execution.

Q. What is an overt act or external act in the commission of a crime?

Answer: An overt or external act is defined as some physical activity or deed indicating the
intention to commit a particular crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural course, without being frustrated by
external obstacles nor by the spontaneous desistance of the perpetrator will categorically and
necessarily ripen into concrete offense. (People v. Lizada, G.R. Nos. 143468-71, January 24,
2003)
Note: Pursuant to People v. Lizada (396 SCRA 62), an act or conduct becomes an overt act of a
crime only when it evinces a causal relation to the intended crime because the act or conduct
will not be an overt act of the crime if it does not have an immediate and necessary relation to
the offense. The Prosecution failed to establish an overt act which evinces conspiracy among the
accused. Hence, the Sandiganbayan thereby acted capriciously and arbitrarily. In the second
place, the treatment by the Sandiganbayan of her handwritten unqualified "OK" as an overt act
of plunder was absolutely unwarranted considering that such act was a common legal and valid
practice of signifying approval of a fund release by the President.
Section 2 of Republic Act No. 7080 (Plunder Law) requires in the criminal charge for plunder
against several individuals 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. 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.

Q. What will support a conviction based circumstantial evidence?

Answer: Circumstantial evidence is defined as that evidence that indirectly proves a fact in issue
through an inference which the fact-finder draws from the evidence established. It is sufficient
for conviction if:
[a] there is more than one circumstance;
[b] the facts from which the inferences are derived are proven; and
[c] the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.
To uphold a conviction based on circumstantial evidence, it is essential that the circumstantial
evidence presented must constitute an unbroken chain which leads one to a fair and reasonable
conclusion pointing to the accused, to the exclusion of the others, as the guilty person. The test
to determine whether or not the circumstantial evidence on record is sufficient to convict the
accused is that the series of circumstances duly proved must be consistent with each other and
that each and every circumstance must be consistent with the accuser’s guilt and inconsistent
with the accuser’s innocence. (People of the Philippines v. P/Supt. Artemio E. Lamsen, et
al, G.R. No. 198338, 20 February 2013)

Q. What is the best evidence to establish minority to be appreciated as a mitigating

circumstance?
Answer: To establish minority one’s Certificate of Birth may be introduced as evidence. Article
68(2) of the Revised Penal Code provides that when the offender is a minor over 15 and under 18
years, the penalty next lower than that prescribed by law shall be imposed on the accused but
always in the proper period. The rationale of the law in extending such leniency and compassion
is that because of his age, the accused is presumed to have acted with less discernment. This is
regardless of the fact that his minority was not proved during the trial and that his birth

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certificate was belatedly presented for our consideration, since to rule accordingly will not
adversely affect the rights of the state, the victim and his heirs. (People v. Agacer et. al., 07
January 2013)

People v. Pruna (G.R. No. 138471, 10 October 2002, Davide, C.J.) formulated a set of guidelines
that will serve as a jurisprudential benchmark in appreciating age either as an element of the
crime or as a qualifying circumstance in order to address the seemingly conflicting court
decisions regarding the sufficiency of evidence of the victim’s age in rape cases.
The Pruna guidelines 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 victims 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.

Q. The Sandiganbayan rendered found Reyes guilty of violation of Section 3 (e) of R.A. No. 3019,
and the other with usurpation of judicial functions under Article 241 of the Revised Penal Code.
The Sandiganbayan appreciated the mitigating circumstance of old age in favor of the petitioner
by virtue of his being already over 70 years old. Was the ruling of the Sandiganbayan correct?
Answer: The Sandiganbayan erred. The mitigating circumstance of old age under Article 13 (2)
of the Revised Penal Code applied only when the offender was over 70 years at the time of the
commission of the offense. The petitioner, being only 63 years old when he committed the
offenses charged, was not entitled to such mitigating circumstance of age. (Reyes v. People,
G.R. Nos. 177105-06, 04 August 2010)

Q. What is conspiracy?
Answer: Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Evidence need not establish the actual
agreement among the conspirators showing a preconceived plan or motive for the commission
of the crime. Proof of concerted action before, during and after the crime, demonstrates their
unity of design and objective, and is sufficient to prove conspiracy. When conspiracy is
established, the act of one is the act of all regardless of the degree of participation of each.
(People v. Milan, Chua and Carandang, 653 SCRA 607, People v. Webb et al., G.R. No. 176389,
December 14, 2014)

Q. What is conspiracy as a manner of incurring criminal liability?

Answer: If the conspirators commit a felony, like treason, they will be held liable for treason and
the conspiracy is only a manner of incurring criminal liability. Conspiracy is not treated as a
separate offense but used to determine the liability of the offenders.

Q. What is conspiracy as a felony?

Answer: Conspirators should not actually commit treason, rebellion or other similar offenses, it
being sufficient that two or more persons agree and decide to commit it. Conspiracy as a felony
relates to a crime actually committed.

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Q. What is the concept of implied conspiracy?
Answer: On matters of conspiracy, it is a settled rule that it need not be proven by direct
evidence of prior agreement on the commission of the crime as the same can be inferred from
the conduct of the accused in unison with each other, evincing a common purpose or design.
(People v. Pablo, et.al., GR Nos. 120394-97, January 16, 2001)
It may be shown through circumstantial evidence, deduced from the mode and manner in which
the offense was perpetrated. Proof of a previous agreement and decision to commit the crime is
not essential but the fact that the malefactors acted in unison pursuant to the same objective
suffices. (People v. Agacer, G.R. No. 177751, December 14, 2011)

Q. Distinguish an accomplice from a conspirator.

Answer: Conspirators and accomplices have one thing in common, they know and agree with the
criminal design. Conspirators, however, know the criminal intention because they themselves
have decided upon such course of action. Accomplices come to know about it after the
principals reached the decision, and only then do they agree to cooperate in its execution.
Accomplices are persons who, not acting as principals cooperate in the execution of the offense
by previous and simultaneous acts, which are not indispensable in the commission of the crime

Q. What are the different systems of penalty?

Answer: The different types of penalty are:
1. Material Accumulation System- It provides that all penalties for all violations are
imposed even if they reached beyond the natural span of human life.
2. Juridical Accumulation System—The service of the several penalties imposed on
and the same culprit is limited to not more than ¾ the length of the time
corresponding to the most severe and in no case to exceed 40 years.
3. Absorption System - This system requires the imposition of single penalty in
complex crimes, continuing crimes and specific crimes like robbery with homicide.

Q. Distinguish prescription of crime from prescription of penalty

Answer: Prescription of crime is the forfeiture or loss of the right of the state to prosecute the
offender after the lapse of a certain time; while prescription of penalty is the loss or forfeiture of
the right of the government to execute the final sentence after the lapse of a certain time.

Q. What is the imposable penalty upon a person below 18 years of age?

Answer: The following rules will be observed in imposing the proper penalty to be imposed
upon a person less than 18 years of age:
1. When the minor is found guilty of the offense charged, the court shall determine the
penalty in the judgment of conviction but shall suspend the promulgation (not the
execution) and orders commitment to a reformatory institution, if the court therefore
approves his application. Upon the recommendation of the social worker, the court shall
dismiss the case against the child and shall order the final discharge of the child if it finds
the objective of the disposition measures have been fulfilled.
2. If the minor is returned to the other correlative proceedings, if any, have not achieved
their purposes and in effect, the accused have been found to be incorrigible.
3. If the court finds that the objective of the disposition measures imposed upon the child
in conflict with the law have not been fulfilled, or if the child in conflict of the law has
willfully failed to comply with the conditions of his disposition or rehabilitation program,
the child shall be brought to court for promulgation (not execution) of judgment
4. If the child has reached 18 years of age while under suspended sentence, the court shall
determine whether to discharge the child, order execution of sentence, or to extend the
suspended sentence until the child reaches 21.

Q. Is public censure a penalty?

Answer: Yes, public is a penalty and being such, it is not proper in acquittal. If the accused is
acquitted, the court has no authority to censure him, because censure no matter how light the
punishment maybe, is repugnant and essentially contrary to acquittal. (El Pueblo de Filipinas v.
Abellera, G.R. No.46747, February 24, 1940)

Q. What are the purposes of Probation Law?

Answer: The purposes of the Probation Law are as follows:
1. To promote the correction and rehabilitation of an offender by providing him with
individualized treatment;

8|Page
 2. To provide an opportunity for the reformation of a penitent offender which might be less
probable if were to serve a prison sentence; and
3. To prevent the commission of offenses (P.D. No. 968, Sec. 2)

Q. Cite the rules on grant the probation.

Answer: The following rules must be observed in granting probation:
1. Probation is granted only when the sentence imposes a term of imprisonment or a fine.
2. After conviction and sentence is rendered for a probationable penalty, the defendant may
apply for probation within the period for perfecting an appeal, in which case the right to
appeal is deemed waived.
3. The trial court shall then suspend the execution of the said sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem
best.
4. No application for probation shall be entertained or granted if the defendant has perfected
the appeal from the judgment or conviction.
a. However, 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.
b. The application for probation based on the modified decision shall be filed in the
trial court where the judgment of conviction imposing a non-probationable
penalty was rendered, or in the trial court where such case has since been re-
raffled.
5. In cases involving several defendants where some have taken further appeal, the other
defendants may apply for probation by submitting a written application and attaching
thereto a certified true copy of the judgment of conviction.
6. An order granting or denying probation shall not be appealable (P.D. No. 968, Sec. 4, as
amended by R.A. No. 10707)

Q. May a person convicted upon final judgment and sentenced to a non-probationable penalty
still apply for probation on the ground that his sentence should be reduced because the trial
court failed to consider mitigating circumstances?
Answer: No, a person convicted upon final judgment and sentenced to a non-probationable
penalty may no longer apply for probation on the ground that his sentence should be reduced
because the trial court failed to consider mitigating circumstances. The defendant should have
appealed his conviction. Had his appeal from his conviction been granted, and the judgment is
modified, he would have been entitled to apply for probation based on the modified decision
before such decision becomes final (Colinares v. People, G.R. No. 182748, December 13, 2011).

Q. What will be the effect for taking the improper remedy?

Answer: Because the offender has taken an improper remedy, the application for probation shall
be dismissed. His application for probation having been denied, both the judgment of conviction
and the decision denying the grant of probation cannot be appealed from (P.D. No. 968, Sec. 4,
as amended by R.A. No. 10707).

Q. What is the three-fold in the service of a penalty imposed by the court?

Answer: The threefold rule is a law on the service of prison sentence which provides that a
prisoner with multiple penalties shall not stay longer than threefold of the most severe penalty
imposed upon him. This rule is embodied in Article 70 of the Revised Penal Code (RPC), which
states that:
“Article 70. Successive service of sentences—When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties so permits;
otherwise, the following rules shall be observed:
In the imposition of penalties, the order of their respective severity shall be followed so
that they may be executed successively and as nearly as possible, should a pardon have
been granted as to the penalty or penalties first imposed, or should they have been
served out.
Notwithstanding the provisions of the rule next preceding, the maximum duration of the
convict’s sentence shall not be more than threefold the length of time corresponding to
the most severe of the penalties imposed upon him. No other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the same maximum
period.”

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Q. What is the Good Conduct Time Allowance?
Answer: Good conduct time allowance or GCTA is a sentence reduction provision afforded
prisoners who show good behavior. It has been in existence since 1906. Act 1533 provided for
the “diminution of sentences imposed upon prisoners” in consideration of good conduct and
diligence.
Q. What are the benefits which can be derived under the Good Conduct Time Allowance Law?
Answer: R.A. 10592 provides the following benefits:
(1) credit of preventive imprisonment;
(2) good conduct allowance for preventive imprisonment; and
(3) good conduct allowance for imprisonment.

Q. What are the four types of criminal repetition?

Answer: The four types of criminal repetition are:
1. Recidivism: Where a person, on separate occasions, is convicted of two offenses
embraced in the same title in the RPC. This is a generic aggravating
circumstance.
2. Habituality: Where the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for two crimes to which it
attaches a lighter penalty. This is a generic aggravating circumstance. This is also
known as Reiteracion.
3. Habitual Delinquency: Where within a period of ten years from the date of his
release or last conviction of the crimes of serious or less serious physical injuries,
robbery, theft, estafa, or falsification, the offender is found guilty of any said
crimes a third time or oftener.
4. Quasi-recidivism: Where a person commits a felony before beginning to serve or
while serving a sentence on a previous conviction for a felony. This is a special
aggravating circumstance.

Q. What is proximate cause?

Answer: Proximate Cause is the cause, which in the natural and continuous sequence unbroken
by any efficient intervening cause, produces the injury, without which the result would not have
occurred.

Q. When may the court impose destierro as a penalty?

Answer: Destierro is imposed in the following instances:
1. Serious physical injuries or death under exceptional circumstances (RPC, Art. 247);
2. In case of failure to give bond for good behavior (RPC, Art. 284)
3. As penalty for the concubine in concubinage (RPC, Art. 334); and
4. In cases where after reducing the penalty by one or more degrees, destierro is the proper
penalty (REYES, Book One, p. 623)

Q. State the rule how Act No. 4103 or the Indeterminate Sentence Law (ISLAW) as amended by
Act No. 4225, is applied in the imposition of sentence.
Answer: In imposing a prison sentence for an offense punished by the Revised Penal Code or its
amendments, the court shall sentence the accused to an indeterminate sentence the maximum
term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense.
If the offense is punished by any other law (special penal laws), the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same (Act No. 4103, Sec. 1).

Q. When is ISLAW mandatory?

Answer: The Indeterminate Sentence Law is mandatory when imprisonment would exceed one
(1) year (People v. Lee, G.R. No. L-66859, September 12, 1984), whether punishable by the RPC
or by special laws (Bacar v. De Guzman Jr., A.M. No. RTJ-9601349, April 18, 1997).
If the maximum term of imprisonment is less than one (1) year, the trial court may not impose
an indeterminate sentence but straight penalty of one year or less instead (Guinhawa v. People,
GR No. 162822, Aug 25, 2005).

Q. Under what circumstances is the ISLAW not applicable?

Answer: ISLAW shall not apply to:
1. Persons convicted of offenses punished with death penalty or life imprisonment;

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 Note: The court has equated the penalty of reclusion perpetua as synonymous to life
imprisonment for purposes of ISLAW (People v. Enriquez, G.R. No. 158797, July 29,
2005). Hence, a person punished with reclusion perpetua I not entitled to the benefits of
ISLAW (1 FESTIN, SPL Reviewer, p. 31)
2. Those convicted of treason, conspiracy or proposal to commit treason;
3. Those convicted of misprision of treason, rebellion, sedition or espionage;
4. Those convicted of piracy;
5. Those who are habitual delinquents;
Note: Recidivists are entitled to an indeterminate sentence (People v. Jaranilla, L-
28547, February 22, 1974). An offender is not disqualified to avail of the benefits of the
ISLAW even if the crime is committed while he is on parole (People v. Clareon, CA 78
O.G. 6701, November 19, 1982, as cited in Bacar v. De Guzman, Jr., A.M. No. RTJ-96-
1349, April 18, 1997).
6. Those who shall have escaped from confinement or evaded sentence;
7. Those who violated the terms of conditional pardon granted to them by the Chief
Executive;
8. Those whose maximum term of imprisonment does not exceed one year;
9. Those already sentenced by final judgment at the time of the approval of the law, except
as provided in Section 5 hereof (Act No. 4103, Sec. 2).

Q. Cite the rule in arriving at the minimum term of the indeterminate sentence under the RPC.
Answer: The law provides that the minimum should be: “within the range of the penalty next
lower to that prescribed by the Code for the offense” (Act No. 4103, Sec. 1). The ISLAW leaves it
entirely within the sound discretion of the court to determine the minimum penalty, as long as it
is anywhere within the range of the penalty next lower without any reference to the periods into
which it might be subdivided (Jarillo v. People, G.R. No. 164435, September 29, 2009).

Q. What are the rules in arriving at the maximum and minimum term of the indeterminate
sentence under a special law?
Answer: The following rules shall apply:
1. The maximum term shall not exceed the maximum fixed by said law;
2. The minimum shall not be less than the minimum prescribed by the special law; and
3. The presence of mitigating circumstance is immaterial.

Q. What is the effect of voluntary surrender and voluntary confession in the prosecution of a
crime?
Answer: Article 13, subsection 7, of the Revised Penal Code, considers as mitigating
circumstance voluntary surrender to the authorities as well as voluntary confession of guilt prior
to the presentation of the evidence for the prosecution. Under the law, any of these facts
constitutes mitigating circumstance. Although these circumstances are considered mitigating in
the same subjection of the Article 13, when both are present they should have the effect of
mitigating the penalty as two independent circumstances. If any of them must mitigate the
penalty to a certain extent, when both are present they should produce this effect to a greater
extent.

Q. Define ill-gotten wealth under the Plunder Law.

Answer: "Ill-gotten wealth" means any asset, property, business enterprise or material
possession of any person within the purview of Section two (2) hereof, acquired by him directly
or indirectly through dummies, nominees, agents, subordinates and/or business associates by
any combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks
or any/or entity in connection with any government contract or project or by reason of
the office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;
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;

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 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 undue advantage of official positi0n, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice

Q. What are the requisites to successfully prosecute the commission of Plunder?

Answer: The law on plunder requires that a particular public officer must be identified as the
one who amassed, acquired or accumulated ill-gotten wealth because it plainly states that
plunder is committed by any public officer who, by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth in the aggregate amount or total
value of at least ₱50,000,000.00 through a combination or series of overt criminal acts as
described in Section l(d) hereof. Surely, the law requires in the criminal charge for plunder
against several individuals 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,
subordim1tes or other persons. 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. Of course, implied conspiracy could also identify the main
plunderer, but that fact must be properly alleged and duly proven by the Prosecution.

Q. What are the elements of libel?

Answer: The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.

Q. What are the effects of libel in cyberspace?

Answer: Libel in the cyberspace can stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives,
and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which
seeks to regulate the use of this cyberspace communication technology to protect a person’s
reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep,
invading the area of protected freedoms.

Q. What is the distinction between online libel and libel under Article 353 of the RPC?
Answer: Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material cannot be
the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised
Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication. Charging the offender under both laws would
be a blatant violation of the proscription against double jeopardy.

Q. What are the specific types of estafa?

Answer: The following are the specific types of estafa:
1. Estafa with unfaithfulness or abuse of confidence; and
2. Estafa by means of deceit which may be by means of false pretenses or through
fraudulent means.
Note: To constitute estafa by postdating a check or issuing a check in payment of obligation,
deceit should be the efficient cause of defraudation. The act must have been committed either
prior to or simultaneous with the defraudation complained of. Hence, a check issued in payment
of a pre-existing obligation does not constitute estafa even if there is no fund in the bank to
cover the amount of the check. (People v. Reyes, GR No. 154159, March 31, 2005)

Q. What are the elements of estafa under Article 315(1) of the RPC?
Answer: The elements of Estafa under Article 315(1) are: (a) the offender’s receipt of money,
goods, or other personal property in trust, or on commission, or for administration, or under any
obligation involving the duty to deliver or to return, the same; (b) misappropriation or conversion
by the offender of the money or property received, or denial of receipt of the money or property; (c)

12 | P a g e
the misappropriation, conversion or denial is to prejudice of another; and (d) demand by the
offended party that the offender return the money or property received.

Under the first element, the offender acquires material or physical possession and juridical possession
of the thing received. Juridical possession means a possession which gives the transferee a right over
the thing which the transferee may set up even against the owner.

Q. C works with SIAM Bank, Inc. For failure to explain the discrepancies in the 853 provisional
receipts amounting to P470,768. 00. She was charged with Estafa under Article 315(1) of the
RPC. Was the charge against C correct?
Answer: No, she should have been charged with theft, qualified or otherwise. A sum of money
received by an employee on behalf of an employer is considered to be only in the material
possession of the employee. So long as the juridical possession of the thing appropriated did
not pass to the employee-perpetrator, the offense committed remains to be theft, qualified or
otherwise, and not Estafa under Article 315(1). Benabaye, as a collector, the money merely
passes into her hands and she takes custody thereof only for the duration of the banking day.
She had no juridical possession over the missing funds. (Cherry Ann M. Benabaye v. People,
G.R. No. 203466, February 25, 2015)

Q. Is there a complex crime of estafa through falsification of public document?

Answer: There is no complex crime of estafa through falsification of private document. It is
important to ascertain whether the offender is to be charged with falsification of a private
document or with estafa. To constitute the crime of falsification of private documents, damage
or intent to cause damage is necessary, similar to the crime of estafa. If the falsification of the
private document is committed as a means to commit estafa, the proper crime to be charged is
falsification. If estafa can be committed without the necessity of falsifying document, the
proper crime to be charged is estafa. (Batulanon v. People, G.R. No. 139857, September 15,
2006)

Q. When is theft consummated?

Answer: There is consummated theft the moment there is asportacion or unlawful taking or
possession of the property, no matter how momentary, it maybe (Valenzuela v. People, G.R. No.
160188, June 21, 2007)

Q. Distinguish between estafa and theft.

Answer: Estafa is committed if an object was received to be sold, but was pledged instead. Theft
is committed if an object was to be pledged but was sold instead. (Pideli v. People, G.R. No.
163437, February 13, 2008)

Q. An Information for the crime of Estafa under Article 315, paragraph (1) (b) of the Revised
Penal Code (RPC) against M before the RTC for failure to account to the Estate of P the amount
of P2,800,000.00 entrusted to him the sale of a share of the deceased in Wack Golf and Country
Club. The RTC, however, granted the Demurrer to Evidence filed by M. Is M civilly liable despite
the approval of his Demurrer to Evidence?
Answer: M is not civilly liable. In the fairly recent case of Dy v. People, the Court discussed the
concept of civil liability ex delicto in Estafa cases under paragraph 1 (b), Article 315 of the RPC
(with which M was likewise charged), stating that when the element of misappropriation or
conversion is absent, there can be no Estafa and concomitantly, the civil liability ex delicto does
not exist.
In this kind of estafa, the fraud which the law considers as criminal is the act of
misappropriation or conversion. When the element of misappropriation or conversion is
missing, there can be no estafa. In such case, applying the foregoing discussions on civil liability
ex delicto, there can be no civil liability as there is no act or omission from which any civil
liability may be sourced.
More significantly, the CA correctly observed that petitioner's evidence utterly failed to show
that M personally received the ₱2,800,000.00 from petitioner with the duty to hold it in trust
for or to make delivery to the latter.

Q. C was guilty beyond reasonable doubt of the crime of Statutory Rape. However, before an
Entry of Judgment could be issued in the instant case, the Court received a Letter from the
Bureau of Corrections informing the Court of accused-appellant's death as evidenced by the
Certificate of Death. Is Cs’ criminal liability extinguished by reason of his death?
Answer: C’s death prior to his final conviction by the Court renders dismissible the criminal

13 | P a g e
case against him. Article 89 (1) of the Revised Penal Code provides that criminal liability is
totally extinguished by the death of the accused. Criminal action is extinguished inasmuch as
there is no longer a defendant to stand as the accused; the civil action instituted therein for the
recovery of the civil liability ex delicto is ipso facto extinguished, grounded as it is on the
criminal action. However, it is well to clarify that C's civil liability in connection with his acts
against the victim, AAA, may be based on sources other than delicts; in which case, AAA may file
a separate civil action against the estate of accused-appellant, as may be warranted by law and
procedural rules. (Culas v. People, G.R. No. 211166, June 5, 2017)

Q. How falsification of document proven?

Answer: The prosecution must establish the fact of falsification or forgery by clear, positive, and
convincing evidence, as the same is never presumed. The fact of forgery can only be established
by a comparison between the alleged forged signature and the authentic and genuine signature
of the person whose signature is theorized to have been forged.
A photocopy of the document in question is sufficient to establish the fact of forgery because
there are other handwriting elements which could not be determined in the photocopy, such as
minor details which could not be visibly detected by the naked eye. (Lamsen v. People, G.R. No.
227069, November 22, 2017)

Q. What are the elements of Falsification of Private documents under Article 172 (2) of the RPC
and Article 171 (4) of the RPC??
Answer: The elements of Falsification of Private Documents under Article 172 (2) of the RPC
are: (a) that the offender committed any of the acts of falsification, except those in Article 171 (7)
of the same Code; (b) that the falsification was committed in any private document; and (c) that
the falsification caused damage to a third party or at least the falsification was committed with
intent to cause such damage.
On the other hand the elements of Falsification under Article 171 (4) of the RPC are as follows:
(a) the offender makes in a public document untruthful statements in a narration of facts; (b) he
has a legal obligation to disclose the truth of the facts narrated by him; and (c) the facts narrated
by him are absolutely false.

Q. Distinguish forgery from falsification.

Answer: Forgery under Article 169 of RPC refers to the falsification or counterfeiting of
treasury or bank notes or any instruments payable to bearer or order while falsification is the
commission of any of the eight (8) acts mentioned in Article 171 of the RPC on legislative,
public or official, commercial or private documents or wireless or telegraph messages.

Q. What are the ways of committing the crime of direct assault?

Answer: The two ways to commit direct assault are:
1. Without public uprising, by employing force or intimidation for the attainment of any
of the purposes enumerated in defining the crimes of sedition and rebellion ; or
2. Without public uprising, by attacking, by employing force or seriously intimidating or
by seriously resisting ay person in a authority or any of his agents while engaged in the
performance of official duties, or on the occasion of such performance.

Q. What are the elements of the crime of indirect assault?

Answer: The elements of indirect assault are:
1. That any of the forms of direct assault defined in Article 148 is being committed or has
been immediately committed against a person in authority or an agent of a person in
authority;
2. That the offended party comes to the aid of such person in authority or an agent of a
person in authority being attacked; and
3. That the offender makes use of force or intimidation upon such person coming to the
aid of the person in authority or agent of a person in authority.

Q. Distinguish direct bribery from indirect bribery.

Answer: The principal distinction between direct and indirect bribery is that in the former, the
officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In
the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the
gift offered by reason of his office. If after receiving the gift, the officer does any act in favor of
the giver which is unfair to the others, it ceases to be indirect but becomes direct bribery. (Pozar
v. CA, G.R. No. L-62439, October 23, 1984)

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Q. What are the elements of qualified rape?
Answer: The elements of Rape under Article 266-A (1) (a) are: (a) the offender had carnal
knowledge of a woman; and (b) said carnal knowledge was accomplished through force, threat
or intimidation.
The gravamen of Rape is sexual intercourse with a woman against her will. On the other hand,
Statutory Rape under Article 266-A (1) (d) is committed by having sexual intercourse with a
woman below twelve (12) years of age regardless of her consent, or lack of it, to the sexual act.
Proof of force, threat, or intimidation, or consent of the offended party is unnecessary as these
are not elements of statutory rape, considering that the absence of free consent is conclusively
presumed when the victim is below the age of twelve.
In determining, whether a person is “twelve (12) years of age” under Article 266 –A (I) (d), the
interpretation should be in accordance with either the chronological age of the child if he or she
is not suffering from intellectual disability, or the mental age if intellectual disability is
established
Moral ascendancy of an accused over the victim renders it unnecessary to show physical force
and intimidation, since in rape committed by a close kin, moral influence or ascendancy takes
the place of violence or intimidation. (People v. Aliganga, GR No. 189836, June 5, 2013)

Q. What constitutes “deprived of reason” in the crime of Qualified Rape?

Answer: The term “deprived of reason” has been construed to encompass those suffering from
mental abnormality, deficiency or retardation. Thus a mental retardate can be classified as a
person “deprived of reason”, not one who is demented an carnal knowledge of a mental
retardate is considered rape under sub (b) and not sub (d) of Article 266-A (1) (People vs. Baay,
G.R. No. 220143, June 7, 2017 citing People v. Dalan, G.R. No. 203086, June 11, 2014).
Q. What is the effect of moral ascendancy in Qualified Rape?
Answer: Moral ascendancy or influence exercised by the accused over the victim substitutes the
element of physical force or intimidation in cases of rape. (People v. Padigos, G.R. No. 181202,
December 5, 2012)

Q. What is the effect upon the accused who raped his minor daughter three times when the first
two incidents happened before the enactment of R.A. 8353 and last incident after the effectivity
of the new law?
Answer: Since the first two incidents occurred in 1996 when RA 8353 was not yet existent, the
accused can only be held liable of statutory rape under Article 335 of the RPC.
However, he can already be held liable for qualified rape for the third incident as it occurred
sometime in June 2000 – when RA 8353 is already in effect. The crime was qualified by the
relationship of the accused to AAA, the former being the common-law spouse of the parent of
the victim (Article 266-B, paragraph 1, of the RPC as amended by R.A. 8353). (People v.
Guillermo B. Cadano, Jr. G.R. No. 207819, March 12, 2014)

Q. Distinguish between attempted rape and consummated rape.

Answer: There must be sufficient and convincing proof that the penis indeed touched the labia
or slid into the female organ, and not merely stroked the external surface thereof, for the
accused to be convicted of consummated rape. Absent of any showing of the slightest
penetration of the female organ, it can only be attempted rape, if not acts of lasciviousness.
(People v. Campuhan, G.R. No. 129433, March 30, 2000)

Q. What is crime of Forcible Abduction with Rape?

Answer: The motive of the accused will determine if the crime committed is Forcible Abduction
with Rape is committed. The principal objective of S and his two cohorts in abducting AAA from
Dapitan Street and in bringing her to another place was to rape and ravish her. This objective
became evident from the successive acts of S immediately after she had alighted from the car in
completely undressing her as to expose her whole body (except the eyes due to the blindfold), in
kissing her body from the neck down, and in having carnal knowledge of her (in that order).
Although forcible abduction was seemingly committed, the Court cannot hold him guilty of the
complex crime of forcible abduction with rape when the objective of the abduction was to
commit the rape. Under the circumstances, the rape absorbed the forcible abduction. (People v.
Sabadlab, G.R. No. 175924, March 14, 2012)
In People v. Amaro (G.R. No. 199100, July 18, 2014), the Court held that the accused was
properly charged of the complex crime of forcible abduction with rape. AAA’s abduction was a
necessary means to commit rape. Sexual intercourse with AAA was facilitated and ensured by
her abduction.

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When the accused forcibly took away the victim, for the purpose of raping her, as in fact he did
rape her, lewd and chaste designs existed since the commencement of the crime. As a result, the
accused committed the complex crime of forcible abduction with rape. (People v. Espiritu, G.R.
No., 128870, October 27, 1999)

Q. What is the “sweetheart theory” in the crime of Rape?

Answer: The "sweetheart theory" is an affirmative defense often raised to prove the non-
attendance of force or intimidation. The "sweetheart theory" operates to impair the victim's
testimony or create doubt on her version of the facts when the defense presents sufficient
evidence of a relationship between the accused and the victim but the latter simply denies it.
(People v. Rubillar, G.R. No. 22463, August 23, 2017)

Q. What acts are considered as child prostitution and other sexual abuse under R.A. 7610?
Answer: Under RA 7680, children whether male or female, who for money, profit or any other
consideration or due to the coercion or influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct. It covers not only a situation in which a child is abused
for profit but also one in which a child, through coercion or intimidation, engages n any
lascivious conduct. The very title of Sec. 5, Art III of RA 7610 shows that it applies not only to a
child subjected to prostitution but also to a child subjected to other sexual abuse. (Roallos v.
People, G.R. No. 198389, December 11, 2013)

Q. Will the failure to mark the seized drugs fatal to cause the acquittal of the accused? Will it
constitute a break in the link of the chain of custody?
Answer: Yes, the failure to mark the seized drugs will cause the acquittal of the accused. In this
case, the shabu "constitutes the very corpus delicti of the offense and in sustaining a conviction
under [RA 9165], the identity and integrity of the corpus delicti must definitely be shown to
have been preserved."
The chain of custody requirement performs this function in buy-bust operations as it ensures
that doubts concerning the identity of the evidence are removed The initial link in the chain of
custody starts with the seizure of the plastic sachets from accused and their marking by the
apprehending officer. Marking after seizure is the starting point in the custodial link, thus it is
vital that the seized contraband is immediately marked because succeeding handlers of the
specimens will use the markings as reference. The marking of the evidence serves to separate the
marked evidence from the corpus of all other similar or related evidence from the time they are
seized from the accused until they are disposed at the end of criminal proceedings, obviating
switching, ‘planting,’ or contamination of evidence. As a final note, it does not escape the Court’s
attention that there was also no testimony from the police officers that they conducted a physical
inventory and took photographs of the sachets of shabu confiscated from appellant pursuant to
Section 21(1) of Article II of RA 9165. Their sworn statements did not mention any inventory-
taking or photographing of the same. They also did not bother to offer any justification for this
omission (People v. Butial, G.R. No. 192785, February 4, 2015)

Q. What is the crime of terrorism?

Answer: Any person who commits any act of the following acts, thereby sowing and creating a
condition of widespread and extraordinary fear and panic among the populace in order to coerce
the government to give in to an unlawful demand, shall be guilty of the crime of terrorism:
1. Piracy in general and mutiny in the high seas or in the Philippine waters (Art. 122)
2. Rebellion or insurrection (Art. 134)
3. Coup d’état including acts committed by private persons (Art. 134-a);
4. Murder (Art. 248);
5. Kidnapping and Serious Illegal Detention (Art. 267);
6. Crimes involving Destruction (Art. 324);
a. Arson (P.D. No. 1613)
b. Crimes under the Toxic substances and Hazardous and Nuclear Waste Control Act
of 1990 (R.A. No. 6969)
c. Crimes under the Atomic Energy Regulatory and Liability Act of 1968 (R.A. No.
5207)
7. Crimes under the Anti-Hijacking Law (R.A. No. 6235);
8. Crimes under the Anti-Piracy and Anti-Highway Robbery Law of 1974 (P.D. No. 532);
9. Crimes under the Decree Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or
Explosives (P.D. No. 1866, as amended)

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Q. Distinguish rebellion from insurrection.
Answer: The term “rebellion” is more frequently used where the object of the movement is
completely to overthrow and supersede the existing government; while “insurrection” is more
commonly employed in reference to a movement which seeks merely to effect some change of
minor importance, or to prevent the exercise of governmental authority with respect to
particular matters or subjects.
Rebellion or insurrection is an act of terrorism under R.A. No. 9372 when it is committed in a
manner which tends to create a condition of widespread fear or panic in order to pursue its
objectives.

Q. What is the crime of carnapping?

Answer: Carnapping under RA 10883 is the taking, with intent to gain, of a motor vehicle
belonging to another without the latter’s consent, or by means of violence against or
intimidation of persons, or by using force upon things.
Note: There is no arguing that the anti-carnapping law is a special law, different from the crime
of robbery and theft included in the Revised Penal Code. It particularly addresses the taking,
with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by
means of violence against or intimidation of persons, or by using force upon things. But a careful
comparison of this special law with the crimes of robbery and theft readily reveals their common
features and characteristics, to wit: unlawful taking, intent to gain, and that personal property
belonging to another is taken without the latter's consent. However, the anti-carnapping law
particularly deals with the theft and robbery of motor vehicles. Hence, a motor vehicle is said to
have been carnapped when it has been taken, with intent to gain, without the owner's consent,
whether the taking was done with or without the use of force upon things. Without the anti-
carnapping law, such unlawful taking of a motor vehicle would fall within the purview of either
theft or robbery which was certainly the case before the enactment of said statute. (People v.
Bustinera, G. R. No. 148233. June 8, 2004)

Q. A, R, M and V kidnapped E from a gym in Caloocan and brought to Batangas. They

demanded for a ransom Of P15M E’s brother. A final amount of P110,000.00 was agreed upon
and a drop off was agreed at the Libingan ng Mga Bayani but sensing that PNP’s PACER was
tipped off, the accused walked away. The following day, the PACER team found the dead body
of Edwin at Sitio Pugpugan, Laurel, Batangas.
A, R, M as well as V were charged with Kidnapping for Ransom with Homicide. The RTC
convicted them of Kidnapping and Serious Illegal detention and did not consider Edwin’s death
in the judgment due to a fact in Edwin’s death certificate. This was affirmed by CA in toto.
Was the affirmation of the conviction proper?
Answer: No, the conviction should have not been confirmed. A, R, M and V should have been
convicted for the special complex crime of Kidnapping for Ransom with Homicide. This is in
view of the E’s death, which was specifically charged in the Information, and clearly established
during the trial of this case.
Citing, People v. Ramos, the Court reiterated the rule that 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 kidnapping and murder or homicide can no longer be complexed
under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex
crime under the last paragraph of Art. 267, as amended by RA No. 7659. (People v. Dionaldo,
G.R. No. 182130, June 19, 2013)

Q. What are the elements of the crime of Kidnapping and Serious Illegal Detention?
Answer: Article 267 of the RPC, as amended, defines and penalizes the crime of Kidnapping and
Serious Illegal Detention. The elements of the crime are as follows: (a) the offender is a private
individual;
(b) he kidnaps or detains another, or in any manner deprives the latter of his liberty;
(c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense
any of the following circumstances are present:
i) the kidnapping or detention lasts for more than 3 days;
ii) it is committed by simulating public authority;
iii) any serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill him are made; or
iv) the person kidnapped or detained is a minor, female, or a public officer. Notable the
duration of detention is immaterial if the victim if a minor, or if the purpose of the

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 kidnapping is to extort ransom. (People v. Brahim Lidasan et. al., G.R. No. 227425,
September 4, 2017)

Q. What are the elements of the crime of fencing under PD 1612?

Answer: The elements of the crime of fencing under PD 1612 are:
1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys,
receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in
any manner deals in any article, item, object or anything of value, which have been
derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or anything
of value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Dela
Torre v. Comelec, G.R. No. 121592, July 5, 1996)

Q. Does the law require proof of purchase of the stolen articles to give rise to a presumption of
fencing?
Answer: The law does not require proof of purchase of the stolen articles as mere possession
thereof is enough to give rise to a presumption of fencing. Section 5 of PD 1416 provides: "Mere
possession of any good, article, item, object, or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing." (Dunlao vs. CA, G.R. No.
111343, August 22, 1996)
The presumption is reasonable for no other natural or logical inference can arise from the
established fact of possession of the proceeds of the crime of robbery or theft. (Dizon-
Pamintuan v. People, G.R. No. 111426, July 11, 1994)

Q. How is hazing defined under R.A.11053 or the “Anti-Hazing Act of 2018?

Answer: Under the law, the definition of hazing has been expanded to include “physical or
psychological suffering, harm or injury inflicted on a recruit, neophyte, applicant or member as
part of an initiation rite or a requirement for continuing membership in a fraternity or
sorority or organization.”
It covers acts ranging from paddling to whipping, beating, branding, forced calisthenics,
exposure to the weather, forced consumption of any food, liquor, beverage, drug or other
substance or any brutal treatment or forced physical activity likely to adversely affect the
physical and psychological health of such recruit.

Q. Who are liable for violation of Anti-Hazing Law?

Answer: If the person subjected to hazing or other forms of initiation rites suffers any physical
injury or dies as a result thereof, the following shall be liable:
PRINCIPAL
1. The officers and members of the fraternity, sorority or organization who actually participated
in the infliction of physical harm shall be liable as principals.
2. The officers, former officers, or alumni of the organization, group, fraternity or sorority who
actually planned the hazing although not present when the acts constituting the hazing were
committed shall be liable as principals.
3. The fraternity or sorority's adviser who is present when the acts constituting the hazing were
committed and failed to take action to prevent the same from occurring shall be liable as
principal.
4. Any person present during the hazing unless he prevented the hazing. The presence of any
person during a hazing is prima facie evidence of participation as a principal unless he
prevented the hazing.
5. If the hazing is held in the home of one of the officers or members of the fraternity, group, or
organization, the parents shall be held liable as principals when they have actual knowledge of
the hazing conducted therein but failed to take any action to prevent the same from occurring.

ACCOMPLICE
1. The owner of the place where hazing is conducted shall be liable as an accomplice, when he
has actual knowledge of the hazing conducted therein but failed to take any action to prevent the
same from occurring.
2. The school authorities including faculty members who consent to the hazing or who have
actual knowledge thereof, but failed to take any action to prevent the same from occurring shall
be punished as accomplices for the acts of hazing committed by the perpetrators. (Sec 4, RA
8049)

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The penalties shall apply to the president, manager, director or other responsible officer of a
corporation engaged in hazing as a requirement for employment.

The new also bans all forms of hazing in fraternities, sororities and organizations in schools,
communities and even businesses and uniformed service learning institutions.
Those who planned or participated in the hazing which results in death, rape, sodomy or
mutilation will be slapped with a penalty of reclusion perpetua and a fine of P3 million.
Unlike the Anti-Hazing Act of 1995, the new measure also penalizes individuals who will try to
cover up hazing activities.
Moreover, it mandates schools to “take more proactive steps to protect its students from the
dangers of participating in activities that involve hazing.”

Q. Tibayan Group Investment Company, Inc. (TGICI) is an open-end investment company

registered with the SEC. In 2002, SEC discovered that TGICI was selling securities to the public
without a registration statement as required under "The Securities Regulation Code."
The complainants were enticed to invest in TGICI due to the offer of high interest rates, as well
as the assurance that they will recover their investments. After giving their money to TGICI,
private complainants received a Certificate of Share and post-dated checks, representing the
amount of the principal investment and the monthly interest earnings but the checks were all
unfunded. What crime was committed?
Answer: Syndicated Estafa was committed. All the elements of Syndicated Estafa, committed
through a Ponzi scheme, are present in this case, considering that: (a) the
incorporators/directors of TGICI comprising more than five (5) people, including herein
accused-appellants, made false pretenses and representations to the investing public — in this
case, the private complainants — regarding a supposed lucrative investment opportunity with
TGICI in order to solicit money from them; (b) the said false pretenses and representations were
made prior to or simultaneous with the commission of fraud; (c) relying on the same, private
complainants invested their hard earned money into TGICI; and (d) the incorporators/directors
of TGICI ended up running away with the private complainants' investments, obviously to the
latter's prejudice.

Q. What is Ponzi scheme?

Answer: A Ponzi scheme is a type of investment fraud that involves the payment of purported
returns to existing investors from funds contributed by new investors. Its organizers often solicit
new investors by promising to invest funds in opportunities claimed to generate high returns
with little or no risk.

Q. SPO1 M was on board his owner-type jeepney with his wife and daughter. While on a stop
position due to heavy traffic, B-1and a certain B-2 suddenly appeared on either side of
the vehicle, with B-1 poking a gun on the side of SPO1 M saying, “putang ina, ilabas mo!” B-1
grabbed the phone of SPO1 M on the latter’s chest pocket and shot him at the left side of his
torso.SPO1 M tried to react by drawing his own firearm and alighting from his vehicle, but failed
to fire at the accused as he fell to the ground. He was taken to a hospital, but died despite
undergoing operation and medical intervention. What crime was committed?
Answer: Robbery with homicide was committed. The crime takes place when a homicide is
committed either by reason, or on the occasion, of the robbery. To sustain conviction, the
following elements must be present: (1) taking of the personal property of another; (2) with
intent to gain; (3) with the use of violence or intimidation against a person; and (4) on the
occasion or by reason of the robbery, the crime of homicide was committed. Moreover, it
requires that the robbery was the main purpose of the accused and not the killing. (People v.
Balute, G.R. No. 212932, January 21, 2015; Peoplev. Hinlo, G.R. No. 212151, February 18,
2015)

Q. What are the rules when both burning and death are present?
Answer: In cases where both burning and death occur, the following rules will apply:
0. If the main objective is the burning of the building or edifice, but death results by reason or
on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed
1. If the main objective is to kill a particular person who maybe in the building or edifice, when
the fire is resorted to as the means to accomplish such goal, the crime is murder
2. If the objective is likewise to kill a particular person, and in fact the offender has already
done so, but the fore is resorted to as a means to cover up the killing, then there are two
separate crimes committed-homicide/murder and arson. (People v. Malngan, G.R. No.
170470, September 26, 2006)

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Q. What constitutes sexual harassment?
Answer: Under Anti Sexual Harassment Act of 1995, sexual harassment maybe committed by
one having authority, influence or moral ascendancy over another in a work training or
education environment against the person over whom the influence or moral ascendancy is
exerted. In an education or training environment in particular, the law expressly provides that
it may be committed against “one who is under the care, custody or supervision of the offender”
or “against one whose education, training, apprenticeship or tutorship is entrusted to the
offender. Abuse of power is the gravamen of sexual harassment (Philippine Aelus Automotive
v.NLRC, G.R. No. 124617)

Q. What acts are considered as child prostitution and other sexual abuse under RA 7610?
Answer: Children whether male or female, who for money, profit or any other consideration or
due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct
RA 7610 covers not only a situation in which a child is abused for profit but also one in which a
child, through coercion or intimidation, engages n any lascivious conduct. The very title of Sec.
5, Art III of RA 7610 shows that it applies not only to a child subjected to prostitution but also to
a child subjected to other sexual abuse (Roallos v. People, GR No. 198389, December 11, 2013)

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