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CRIMINAL LAW REVIEW BULLETS

8.

Culpa and mala prohibita

ATTY. LEONOR D. BOADO

1. Fourth theory of criminal

law - utilitarian or protective

theory –purpose is to impose the penalty against the actual and potential wrongdoers. It should not favor opportunism and materialism.

2. Pardon is a private act of

the President and must be proved; amnesty is his public act, and must be judicially noticed.

3. Equipoise rule: if evidence

of the prosecution and the defense is equally balanced, acquittal is in order for charge is not proved beyond reasonable doubt.

4. Rule that all doubts be

construed in favor of accused are on two matters: in case law

is ambiguous and if evidence is equipoised.

5. One penal law can have

both prospective and retroactive application as long

as either way, the effect favors the accused. Example: R.A. 8294 on illegal possession of firearms.

6. Criminal intent is

generally presumed from the voluntary commission of an unlawful act. Ex. Cocking a firearm and firing it killing

another proves intent to kill.

7. Presumption of criminal

intent does not apply if the act

is equivocal - the specific criminal intent must be proved. Example physical injuries vs. attempted/frustrated killing; attempted rape vs. acts of lasciviousness; grave coercion vs. kidnapping.

are committed without criminal intent.

9. Culpa in Art. 3 is a mode

to commit a crime; Art. 365, it is a crime. 10.Aberratio ictus, the actual and intended victims are both at the situs of crime; in error in personae, the intended victim is absent.

11. Treachery is appreciated

although there is aberratio ictus. 12.Mistake of identity is not synonymous with mistake of fact. In the former there is criminal liability; the latter is absolutory. 13.Impossible crime is not a crime. It is not the act [object] that is punished but the actor [subject] to subdue his criminal tendency. 14.Offender should not be aware that the crime is impossible, e.g., there can be no intent to kill if he knows that the victim is dead. 15.The overt act a principal in conspiracy consists of active participation in the commission of crime, giving moral assistance to or exerting moral ascendancy over the other conspirators. 16.Conspiracy is not an aggravating circumstance. 17.Only the actual perpetrators are liable for acts beyond the

agreement of the conspirators. 18.Unlawful aggression per se is not mitigating; it is incomplete justifying in the form of unlawful aggression that is mitigating. 19.Art. 10(a) means that special law prevails over general law; Art. 10(b) is the soul of the article -

be

supplementary" to special laws, unless the latter specifically provide otherwise.

"the code shall

20.When special laws use the nomenclature of RPC penalties it shows the intent to make the RPC suppletory. In such case, when ISLaw applies, the rules for RPC shall be followed. 21.Abolition of death penalty did not change classification of heinous crimes for purposes of civil liability ex-delicto. 22. Generally, crimes mala in se involve moral turpitude while crimes mala prohibita do not. 23. Crimes under special laws are not always mala prohibita as in mere amendments of the RPC, e.g., cattle-rustling. 24. Malum in se does not absorb malum prohibitum and vice- versa. Thus, simultaneous prosecution is possible for estafa and BP 22 or illegal recruitment; reckless imprudence and mining law. 25.'Aggravating circumstances" is liberally construed to include the circumstances Art. 15 for purposes of the award of damages. Otherwise, it is strictly construed to include those in Art. 14 only. 26.Arias Doctrine excuses head of public office who rely on subordinates when approving transactions in good faith. (ministerial duty concept) 27.Accident and self-defense are incompatible defenses. Accident presupposes lack of intention; self-defense involves voluntariness only that it is induced by necessity. (Lao-as, June 2001) 28.The graver includes the lesser. When the crime charged is different from what is proved, conviction is possible so long as the lesser is necessarily included in the graver.

29.Inducer is a principal if he is a mastermind; accomplice if his inducement is material, significant and efficacious in the commission of the crime but not indispensable; not liable if his utterance is a mere careless statement not meant to be obeyed. 30.Cooperator a principal if cooperation is indispensable; crime cannot be committed without his cooperation; accomplice if the cooperation is dispensable or the crime would still be committed without him. 31.The penalty for each crime in Book II is imposed: (a) as principal penalty; (b) in the consummated stage; (c) on the principal offender; and (d) the maximum imposable for specific offense.

32. In determining next lower degree, penalties prescribed are deemed to be one degree even if composed of one or two periods. Ex. lower than arresto mayor max is arresto mayor med; lower than arresto mayor med and max is arresto menor max and arresto mayor min.

33. There are three scales of

penalties in the RPC:

a. Art. 25 for principal

and accessory penalties

b. Art. 70 for multiple

sentences, including the 3-fold rule

c. Art. 71 for applying

the rules on lowering penalties [Art. 61 in relation to 50-57]

34. There is no automatic

review of reclusion perpetua.

35. The 30-year service

44.

There are five kinds

of

qualifies convict for pardon

multiplicity of

offenses:

and is the equivalent of pena

compound,

complex,

perpetua in computing the

composite,

continued

and

three-fold penalty; the 40 year

continuing

crimes.

Each

is

duration is the maximum that

made

up

of

more

than

one

can be served.

crime with a single penalty.

 

36. The other way of asking:

"What are the exceptions from ISL?" is "When will a straight penalty be imposed?"

37.

parolee is entitled to ISLaw but not probation because ISLaw is mandatory while probation is a privilege; ISLaw is not applied for but probation must be applied for.

a

A

recidivist

and

38. Per par. 1, Art. 63 the

single indivisible penalty of

reclusion perpetua is an exception from the ISLaw.

39. ISLaw applies for

penalties imposed on complex crimes and those as a result of plea bargaining.

40.

imprisonment; otherwise ISLaw

does not apply.

be

Penalty

must

45. No complex crime in Art.

48 if: (a) 1 st crime is element of

2 nd ; (b) the two crimes have same elements; (c) 2 nd crime is to conceal the 1 st .

46. Sufficient provocation

must be immediate; immediate

vindication is not immediate but only proximate.

47. Surrender is no longer

voluntary if a warrant of arrest

is issued.

48. No pretermission of

holidays in prescription of crime and penalty. Prescription is automatic even if last day is a Sunday or a holiday.

49. To be liable for the

death

lingering illness, the acts of violence on him must facilitate,

with

of

a

person

hasten, or be the proximate

 

cause of

the

death

of

the

41.

For multiple sentences in

victim.

probation, the penalties imposed should be taken

50.

Preventive penalties

separately for P.D. 968 uses

"maximum," not

"Previous" should refer to conviction not to offenses.

total.

Subsidiary penalty

applies in violation of special laws.

42.

43. Modifying circumstances

are not considered in culpa.

(suspension and preventive imprisonment) are not penalties for not imposed after trial on the merits.

51. Error to lump all kinds

of damages – actual, moral and exemplary into one amount for they have different bases and proof required.

52. In statutory rape, the

· Members of band and

only proof required is sexual congress with a girl less than 12 for she cannot give valid

organized crime are principal; those in aid of armed men are accomplices

consent.

 

·

Band is composed of

53.

Moral and physical

more than 3 armed

ascendancy in incestuous rape of minors substitutes the force and intimidation required.

malefactors; organized crime syndicate at least 2 persons; armed men not numbered

54. Sexual congress with

consent of child less than 12 is rape; with over 12 and under 18, seduction; with exactly 12, child abuse.

55. Presumption of law is

· Members of organized

crime not required to be armed but must be formed for crimes of gain; members of band and armed men are required to be armed but not particularly for crimes of gain

based

on

prima

 

facie

evidence

The

facts

proved

60.

Status crimes are not

furnish

the

basis

of

the

crimes if committed by adults.

presumption.

It

does

not

Minors are exempt for: status

negate

but

counterbalances

crimes; vagrancy and

the presumption of innocence.

prostitution; mendicancy (PD 1563) and snuffing of rugby

56.

R.A.9344 did not repeal

(PD 1619)

PD 603 and did not remove minor's disqualification from suspended sentence if (a) crime committed is punishable with death or life imprisonment; (b) has once given suspended sentence or (c) he was convicted by Military Tribunal.

57. Punishable means

possible not actual sentence given on minor.

58. Severity of sentence is

not measured by duration but by degree of deprivation of liberty, e.g. destierro vis-à-vis arresto mayor.

59. Band vs. aid of armed

men

syndicate:

organized crime

vs.

61. Amnesty is public act of

the President, judicial notice

mandatory; absolute pardon is his private act and must be proved.

62. The Constitution, placed

death penalty

suspensive condition; R.A. 9346 killed the death penalty.

under

63. Kinds of direct assault:

(1) Employ force or intimidation without public uprising to attain any of purposes of rebellion and sedition; cannot be committed during rebellion. (2) Attack, employ force, seriously intimidate or resist any person in authority or his agents, while in the performance of official duties, or on occasion thereof.

64.

Perjury

is

willful and

69.

In technical

corrupt

assertion

of

a

malversation or illegal use of

falsehood under

oath

or

public funds, the public officer

affrimation

administered by

does not derive benefit or gain

authority of law on a material

from the funds or property. As

matter. It is an obstruction of justice. Assertion of belief is

public fund is applied to another public purpose which

not perjury.

There must be

is not illegal per se,

false statement

of

material

presumption of criminal intent

matter.

does not operate.

65.

Unjust vexation exists

70.

If

any other crime is

even without the element of

committed, use of unlicensed

restraint or compulsion since

firearm absorbed – no liability

term is broad enough to

for

firearm and not

include any act which unjustly irritates or annoys an innocent

aggravating.

 

person. No need to allege

71.

Other crime need not

malice, restraint or compulsion

be

committed

using

the

in the information.

unlicensed firearm.

 

66.

Information for

72. Presumed malice or

attempted rape can convict for unjust vexation.

malice in law excepts private

communication made by any person to another in the

67.

Res judicata in prison

performance of any legal,

grey

is

the equivalent of

moral or social duty; a fair and

double jeopardy.

 

true report in good faith of official proceedings not

68.

Two

kinds

of

public-

confidential in nature and fair

office related crimes:

a. Public office is constituent

element as defined in the statute and the offense cannot exist without the office. Ex. Malversation. There is no need to allege intimate conncetion between crime and the office

b. Offenses or felonies intimately connected with the public office and perpetrated while officer is in performance of his official functions through improper/irregular conduct. Must be alleged in Information.

commentaries on

matters of

public interest.

73. These 3 exceptions are

qualifiedly privileged statements actionable if malice in fact can be proved. Absolutely privileged statements like court pleadings and parliamentary statements not actionable.

74. Truth is not a defense in

libel except statements against public officials and public figures; burden is on them to disprove the truth.

75. The wife of the offended

in libel is a third person for

purposes of the requirement of publication in libel cases.

76. Fine is a penalty, thus

the directive to impose fine on libel [and BP 22] does not decriminalize the felonies. Not judicial legislation.

77.

dishonor of check is lack of fund. If for other reasons like forgery, BP 22 does not apply.

for

The

only

reason

78. Notice of dishonor must

be in writing. An oral notice is

not sufficient for purposes of BP 22 violation.

79. Felonious taking is the

act of depriving another of possession and dominion of movable property without his privity and consent and without animus revertendi. Unlawful taking may be in any of:

a. Owner or juridical

possessor does not give

consent to taking;

b.

given, it was vitiated; or

If

the

consent

was

c. Where an act by the

white slave trade is profiting

from the prostitution of person who is not a minor

any

81. The 4 elements involved

in medical negligence cases are duty, breach, injury, and proximate causation.

82. Medical malpractice

requires expert testimony except when res ipsa loquitor applies which can be given by ordinary laymen like when a foreign object (scissor, gauze, etc.) is left in the body.

83. Rights of persons under

custodial investigation begin when the investigation ceases to be a general inquiry but focuses on suspect.

84. Investigation must be

carried out by law enforcers; if others like reporters and government auditors, not custodial investigation.

85. Arrest does not require

the application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest. Includes invitation.

receiver

soon

after

the

86.

Lawful possession of a

actual

transfer

of

thing is presumed; but

possession

constitutes

possessor of a recently stolen

unlawful

taking.

The

article is also presumed to be

receiver's

act

could

be

the stealer.

considered

as

executed

without

consent

of

the

87. Presumption that person possessing personal effects belonging to a person robbed or killed is the offender is limited to cases where possession is unexplained or the explanation implausible.

giver.

 

80.

Corruption of minor is

facilitating and promoting the

prostitution of a minor to

satisfy

the

lust

of

another;

88. Carrying in passenger

a.

Covered

total

aircraft corrosive, flammable,

amount

exceeds

explosive, or poisonous

P500,000

within

1

substance even if only to test capability of airport personnel

banking day

 

to detect such items violates

b.

Suspicious

Anti-hijacking law.

regardless

of

amount

if

amount involved beyond

89.

Making

threats

or

client's

capacity;

client

pranks

orally,

thru

mail,

not

properly

identified;

telephone,

printed

materials

 

transaction

related

to

and

etc.

violates

PD

1727

unlawful

activity,

and

(rumor mongering)

 

analogous situations.

90.

Trafficking in persons

95.

Transaction

both

includes recruiting, transporting persons for employment, mail order bride, travel and tours package, for prostitution, slavery, debt bondage, sale of body organs etc., recruiting baby makers, adopting a child for armed conflict here or abroad.

91. Violence against woman

or child requires that the offender and the offended have or had dating relationship over time and on a continuing basis.

92. Battered woman who is

not wholly excusable for killing

her batterer enjoys 2 mitigating circumstances:

psychological paralysis and passion and obfuscation.

93. One becomes a battered

woman if she has undergone completely the cycle of violence which has three phases at least twice.

94. Transactions covered by

Anti-money laundering are:

covered and suspicious must

suspicious,

hence

immaterial.

be

is

reported

the

as

amount

or

banking/non-

bank financial institution can

investment

96.

Any

in

deposit

be

examined

 

upon

order

of

court.

 

97.

No

court

order

is

required for:

a. kidnapping for ransom

b.

related offenses

drug

trafficking

and

c. hijacking,

arson and murder

destructive

d.

against non-combatants and similar targets

acts by terrorists

98. No praeter intentionem

in violations of Anti-hazing law. The presence of any person during hazing is prima facie evidence of participation as principal unless he prevented commission of acts

99.

An

employee

of

the same would not amount

recruitment

agency

who

to estafa.

actively

and

consciously

participates in recruitment with

knowledge of the business, its

purpose

contributing his efforts to its conduct, however slight is a

principal.

superiors,

effect,

and

he

of

If

just

acted

under

orders

unaware that

criminal, he is not liable.

his

act

is

104. The Ponzi scheme or

pyramiding is an investment program that offers impossibly high returns to early investors out of the capital contributed by later investors. The crime committed by the entity is syndicated estafa under PD No. 1689.

100.

Dispositive portion

of the decision should contain

105.

The accused in

the Section and Article number of RA 9165 violated.

fencing should otherwise be an accessory. If he were a

101.

Possession of shabu

principal or accomplice, his crime would fall under theft

is

penalized with

or robbery.

imprisonment and fine. Fine of must be added to the prison term imposed.

102. The Statement of

Assets and Liabilities required of public officers and employees does not violate the due process clause, the warranty against unreasonable searches and seizures and the right to self incrimination because the information required is not purely private following the principle of public office is a public trust; this is a reasonable safeguard against the temptation for graft; and there is no cases filed yet against the official as to make the rule on self- incrimination operative.

103.

Cash advances to

finance

the

traveling

expenses of employees amounts to a loan hence failure to liquidate or settle

106. Fencing

continuing crime but is distinct from robbery or theft. Thus, the fence can be prosecuted where he took hold of the property, not where this was stolen.

is

not

a

107. Fencing involves

moral turpitude. It is as vile as theft or robbery. The duty not to appropriate or to return anything acquired thru mistake or malice is so basic it is included in the Civil Code provision on Human Relations and solutio indebiti.

108. Burning of one's own

property in such a manner as to put in danger the person or property of another is simple arson under Sec. 1 of PD 1613.

109.

Conspiracy

to

commit

arson

is

penalized

under Sec.

7

of

PD 1613.

Conspiracy to commit drug

trafficking is penalized under RA 9165.

110. Carnapping with

homicide or rape is a special

complex crime penalized with reclusion perpetua to death. ISlaw follows the RPC rules. Other forms of carnapping are penalized with number of years of imprisonment. ISLaw follows the rules for special law.

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