consideration of any offer, promise, gift or offer, refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death (Art. 211-A, RPC). B. May a judge be charged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (5%) No, ajudge may not be charged of this felony because his official duty as a public officer is not law enforcement but the determination of cases already filed in court. On the other hand, a public prosecutor may be prosecuted for this crime in respect of the bribery committed, aside from dereliction of duty committed in violation of Art. 208 of the Revised Penal Code, should he refrain from prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present. Meanwhile, a police officer who refrains from arresting such offender for the same consideration above- stated, may be prosecuted for this felony since he is a Public officer entrusted with law enforcement. mm May a public officer charged under Section 3(b) of Republic Act No. 3019 “directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law’] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (4%) Yes, a public officer charged under Sec. 3(b) of Rep. Act 3019 (Anti-Graft and Corrupt Practices Act}may also be charged simultaneously or successively for the crime of direct bribery under Art. 210 of the Revised Penal Code, because the two crimes are essentially different and are penalized under distinct legal philosophies. Whereas violation of Sec. 3(b) of R.A. 3019 is a malum prohibitum, the crime under Art. 210 of the Code is a malum in se. Vv Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cutting off their victims’ appendages, stuffing their torsos, legs, body parts into oil drums and bullet-riddied vehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the “Heinous Crimes Law.” The prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of the Information, how will you pass upon the recommendation? Explain. (52%) SUGGESTED ANSWER: ‘The CHRis correct in describing the crimes committed as “heinous crimes”, as defined in the preamble of the “Heinous Crimes Law” (Rep. Act No. 7659), despite the passage of Rep. Act No, 9346 prohibiting the imposition of the death penalty. However, the “Heinous Crimes Law” does not define crimes; it is only an amendatory law increasing the penalty for the crimes specified therein as heinous, toa maximum of death. Thus, the heinous crimes committed shall be prosecuted under the penal law they arerespectively defined and penalized, such as the Revised Penal Codeas the case may be. The circumstances making the crimes heinous may be alleged as qualifying or generic aggravating, if proper. The crime shall be designated as defined and punished under the penal law violated and the penalty shall be reclusion perpetua without the benefit of parole or life imprisonment without the benefit of parole, as the case may be in lieu of the death penalty. v Arlene is engaged in the buy and sell of used garments, more popularly known as “ukay-ukay.” Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers. Arlene was charged with “fencing.” Will the charge prosper? Why or why not? (5%) SUGSESTED ANSWER: No, a charge of “fencing” will not prosper. “Fencing” is committed when a person, with intent to gain for himself or for another, deals in any manner with an article of value which he knows or should be known to him to have been derived from proceeds of theft or robbery (Sec. 2, PD 1612). Thus, fora charge of fencing to prosper, it must first be established that a theft or robbery of the article subject of the alleged “fencing” has been committed — a fact which is wanting in this case. It should be noted that the suspect is engaged in the buy and sell of used garments, which are in the nature of personal property. In civil law, possession of personal or movable property carries with it a prima facie presumption of ownership. The presumption of “fencing” arises only when the article or item involved is the subject of a robbery or thievery (Sec. 5, PD 1612). vI ‘There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an application for an order to allow inquiry. into his depssit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the court's order. Explain. (3%) ‘The freeze order issued by the Regional Trial Court is not correct, because jurisdiction to issue said freeze order is now vested with the Court of Appeals under Rep. Act 9194, amending the Anti-Money Laundering Act (Rep. Act No. 9160}. The Regional Trial Court is without jurisdiction to issue a freeze order of the money involved. via A widower of ten years, septuagenarian Canuto felt that he had license to engage in voyeurism. If not peeping into his neighbors’ rooms through his powerful single- cylinder telescope, he would trail young, shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. What charge/s, if any, may he be held responsible for? Explain. (5%) (SUCSESTED ANSWER: Canuto may be held liable only for the milder crime of “unjust vexation” which is a form of light coercion under Art 287 of the Revised Penal Code, instead of the ocrime of acts of lasciviousness although the offender is known for his voyeurism. Our Revised Penal Code inclines towards milder criminal responsibility, consistent with the presumption. of innocence under our fundamental law and the rule of Pro reo permeating our system of applying penal laws. Holding the hip of a person is not per se lascivious but undoubtedly annoys, irritates, and vexed the young offended party. The attitude to prosecute the offender for the milder crime of unjust vexation may be proper considering his age and civil status. vir A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a postdated check in the sum of P90,000.00. Both of them knew that the check would not be honored because B's account had just been closed. The two then approached trader C whom they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the check for payment on due date, it was dishonored because the account had already been closed. What action/s may C commence against A and B to hold them toaccount for the loss of her P85,000.00? Explain. 6%) A criminal action for violation of BP 22 may be filed against B who drew the postdated check against a closed bank account, for value paid by C, and with knowledge at the time he issued the check that the account thereof is already closed. A cannot be held liable under BP 22 because he was a mere endorser of B’s check to C who exchanged the check with cash. BP 22 does not apply to endorser of checks. Hence only a civil action may be filed by Cagainst A to recover the P85,000.00. Although a simultaneous action for estafa is authorized by law for the issuance of a worthless check, under the given facts, the check was discounted and thus issued in a credit transaction for 2% pre-existing indebtedness. Criminal liability for estafa does not arise when a check has been issued in payZient for a pre- existing debt. Ix Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with the ‘agreement that they would reimburse her for her expenses. Did Proserfina commit a crime? Explain, (5%) Yes, Progerfina committed violation of Sec. 3 (b) of Rep. Act No. 3019 which considers as a Corrupt practice, the act of: 4(b) Directly or indirectly requesting or receiving any gift, present, share, Percentage, orbenefit, for himself or for any othe? person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.” Being the assistant public high school principal, itis her duty to intervene in the release of salary differentials and per diem of classroom teachers under her. Her act of doing so, made with a request for a share or benefit therefor constitutes graft or corrupt practiice under Sec. 3{b) of Rep. Act No. 3019. Considering that the acts prohibited or punished under this law are Mala prohibita, and thus punishable thereunder, whether done with criminal intent or not.ALTERNATIVE ANSWER: In the case of Jaravata v. Sandiganbayan (G.R. No. 56170, January 31, 1984), which has identical set of facts the present case, the Supreme Court ruled that there is no law which invests an assistant principal with the power to intervene in the payment of the salary differentials of classroom teachers or anyone for that matter.” Accordingly, since in his official capacity as assistant principal he is not required by law to intervene in the payment of the salary differentials, the assistant principal cannot be said to have violated Sec. 3{b) of Rep. Act No. 3019 although he exerted efforts to facilitate the payment of the salary differentials. x A, Band Care members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in which the above-named members of the two fraternities assaulted each other in a confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities who took part in the rumble were charged for death caused ina tumultuous affray. Will the charge prosper? Explain. (4%) No, the charge of death caused in a tumultuous affray will not prosper. In death caused by tumultuous affray under Art. 251 of the Revised Penal Code, it is essential that the persons involved did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. In this case, there is no tumultuous affray sihce the participants in the rumble belong to organized fraternities. The killer of A, a member of the SFC Fraternity could not be any other but member of the rival fraternity. Conspiracy is therefore present among the attackers from the rival fraternity and thus rules out the idea of an affray. The liability of the attackers should be collective for the crime of homicide or murderas the case may be. XI ‘Angelina maintains a website where visitors can give their comments on the posted pictures of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in Angelina’s website is fake and that Angelina is known to sell counterfeit items. Angelina wants to file a case against Bettina. She seeks your advice. What advice will you give her? (4%) I will advise Angelina to file a criminal case of libel against Bettina because the imputations made by Bettina is libelous. Whether the imputation ofa defect, status or condition is real or imaginary, if it publicly tends to discredit, dishonor or place in contempt or ridicule a ‘cular person who is identified, the imputation is Presumed by law to be malicious and thus penalized as libel under Art. 355 of the Revised Penal Code. Moreover, if Bettina is engaged in similar line of trade, her statement against the goods sold by Angelina may constitute a violation of the law on Unfair Competition (Rep. Act No. 8291). PART 0 x A. Define Money Laundering. What are the three (3) stages in money laundering? (3%) Money Laundering is “the process by which a person ©conceals the existence of unlawfully obtained money and makes it appear to have originated from lawful sources. The intention behind such a transaction is to hide the beneficial owner of said funds and allows criminal organizations or criminals to enjoy the proceeds of such criminal activities.” The three (3) stages in money laundering ar a) placement/infusion or the physical disposal of the criminal proceeds; b) layering or the separation of the criminal proceeds from their source by creating layers of financial transactions to disguise such proceeds as legitimate and avoid the audit trail; and ©} integration or the provision of apparent legitimacy to the criminal proceeds. B._ Whatis the doctrine of pro reo? How does it relate to Article 48 of the Revised Penal Code? (3%) The doctrine of pro reo advocates that penal laws and laws penal in nature are to be construed and applied in a way lenient or liberal to the offender, consonant to and consistent with the constitutional guarantee that an accused shall be presumed innocent until his guilt is established beyond reasonable doubt. Following the pro reo doctrine, under Art. 48 of the Revised Penal Code, crimes are complexed and punished with a single penalty (i.e., that prescribed for the most serious crime and to be imposed in its maximum period). The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. (People v. Comadre, 431 SCRA 366, 384 [2004)), However, Art. 48 shall be applied only when it would bring about the imposition of a penalty lesser than the penalties imposable for all the component crimes if prosecuted separately instead of being complexed. xm While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s rters. GuerThe following day, Romeo was found catatonic inside the maid's quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. ; Charged with murder, Romeo pleaded insanity as a defense. A. Will Romeo's defense prosper? Explain. (2%) No, Romeo's defense of insanity will not prosper because, even assuming that Romeo was “insane” when diagnosed after he committed the crime, insanity as a defense to the commission of a crime must have existed and proven to be so existing at the precise moment when the crime was being committed. The facts of the case indicate that Romeo committed the crime with discernment. B. Whats the effect of the diagnosis of the NCMH on. the case? (2%) The effect ofthe diagnosis made by NCME is possibly a suspension of the proceedings against Romeo commitment to appropriate institution for treatment until he could already understand the proceedings. llxIV Paul lives with his long-time girlfriend Joan in a ‘condominium in Makati. For more than a year, he has been secretly saving money in an envelope under their bed to buy her an engagement ring, One day, while Joan was cleaning their room, she found the envelope, took the money, and left Paul. As prosecutor, what crime, if any, would you charge Joan? Explain. (3%) Joan may be charged for qualified theft because she took away personal property belonging to Paul without the latter’s consent, so obviously with intent to gain, and with grave abuse of confidence. But Joan may invoke as a defense Art. 332 of the Revised Penal Code, under which no criminal liability but only civil liability shall result from the crime of theft, swindling or malicious mischief committed by “spouses”, among others. The reference to “theft” under the Article embraces both simple theft and qualified theft, and the reference to “spouses” includes common-law or “live-in” relationship (People v. Constantino, 60 0.G. 3603 [1963)}. xV Suspecting that her husband of twenty years was having an affair, Leilanie hired a private investigator to spy on him. After two weeks, the private investigator showed Leilanie a video of her husband having sexual intercourse with another woman in a room of a five-star hotel. Based on what she saw on the video, Leilanie accused her husband of concubinage. Will the case of concubinage prosper? Explain. (3%) No, a case for concubinage will not prosper because said crime may be committed only by a husband in three (3) ways, viz: 1) By keeping a mistress in the conjugal dwelling; or 2) By having sexual intercourse with a woman not his wife under scandalous circumstances; or 3) By cohabiting with a woman not his wife in any other place (Art. 334, RPC). ‘The facts of the case given do not constitute any of the situations above-stated. XVI ‘The president, treasurer, and secretary of ABC Corporation were charged with syndicated estafa under the following Information: ‘That on or about the Ist week of January 2010 or subsequent thereto in Cebu City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all. of them mutually helping and aiding one another in a syndicated manner, through a corporation registered with the Securities and Exchange Commission (SEC), with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there willfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and several other persons by falsely or fraudulently transactions, which they made with complainants and the public in general, to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the name and style of ABC Corporation and DEF Management Philippines, Incorporated, induced and succeeded in inducing complainants and several other persons to give and deliver to said accused the amount of at least P20,000,000.00 on the strength of said manifestations 13and representations, the accused knowing fully well that the above-named corporations registered with the SEC are not licensed nor authorized to engage in foreign exchange trading and that such manifestations and representations to transact in foreign exchange were false and fraudulent, that these resulted to the damage and prejudice of the complainants and other persons, and that the defraudation pertains to funds solicited from the public in general by such corporations /associations. Will the case for syndicated estafa prosper? Explain. (8%) No, a case for syndicated estafa will not prosper because a syndicate for such crime under Pres. Decree 1689 must be comprised of five (5) or more persons committing the estafa or other forms of swindling defined in Arts. 315 and 316 of the Revised Penal Code; whereas the case given involved only three (3) accused who are alleged to have conspired in the commission of the swindling. But because the amount defrauded exceeds P100,000.00, the case is still under the same P.D. 1689 with a lower penalty than syndicated estafa. XVII A killed his wife and buried her in their backyard. He immediately went into hiding in the mountains. Three years later, the bones of A’s wife were discovered by X, the gardener. Since X hada standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of hiding, A left the country but returned three years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide but raised the defense of prescription. A. Under the Revised Penal Code, when does the period of prescription of a crime commence to run? (1%) Generally, the period of prescription of a crime commences to run from the date it was committed; but if the crime was committed clandestinely, the period of prescription of the crimes under the Revised Penal Code commence to run from the day on which the crime was discovered by the offended party, the authorities or their agents (Art 91, RPC). B. When is it interrupted? (1%) (SUBZESTED ANSWER ‘The running of the prescriptive period ofthe crime is interrupted when “any kind of investigative proceeding is instituted against the guilty person which may ultimately lead to his prosecution” (Panaguiton, Jr. v. Dept. of Justice, G.R. No. 167571, Nov. 25, 2008). Is A’s defense tenable? Explain. (3%) No, the defense of prescription of the crime is not tenable. The crime committed is parricide which prescribes in twenty (20) years (Art 90, RPC). It was only when the care-taker, Z, found the victim's bones and reported the matter to the police that the crime is deemed legally discovered by the authorities or their agents and thus the prescriptive period of the crime commenced to run. When A left the country and returned only after three (3) years, the running of the prescriptive period of the crime is interrupted and suspended because prescription shall not run when the offender is absent from the Philippine Archipelago (Art. 91, RPC). Since A had been in hiding for 15 years after the commission of the crime and the prescriptive period 15started running only after 5 years from such commission when the crime was discovered, only 10 years lapsed and 3 years thereof should be deducted when the prescriptive period was interrupted and suspended. Hence, the 3 years when A was out of the Philippines should be deducted from the 10 years after the prescription starts running. Adding the 7 years of prescription and the 6 years that lapsed before the case was filed, only a total of thirteen (13) years of the prescriptive period had lapsed. Hence the crime has not yet prescribed. XVI ‘On her way home, Eva Marie saw an injured chow chow puppy behind a bush, Since the puppy did not have a collar, she brought it home so she could have it as a pet. Her son in fact begged Eva Marie to keep the puppy. The following day, Eva Marie bought a collar for the puppy and broughtit to a veterinarian for treatment. A. Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain. (2%) Yes, Eva Marie incurred criminal liability for the crime of simple theft. The puppy is personal property which, is susceptible of taking and has pecuniary value. Obviously, she took it with intent to own it; hence, with intent to gain. B. Did she incur civil liability? Explain. (2%) (SUCGESTER ANSWER: Eva Marie may incur civil liability ifthe owner of the puppy would incura loss due to non-restitution or return thereof to the owner. Finding any property of value, legally regarded as lost property, would constitute theft 16 if the finder failed to deliver the same to the local authorities or to its owner (Art 308, par. 1). Once Eva Marie is found guilty of theft, she will incur civil liability, which consists of restitution or reparation for damage caused and indemnification for consequential damages, ‘Art. 100 RPC). The general rule is: a person who is criminally liable is also civilly liable. XIX Jack and Jill have been married for seven years. One hight, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. ‘A week later, the same episode occurred - Jack came home drunk and started hitting Jill Fearing for her life, Jill left and stayed with her sister. ‘To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack another chance. After several days, however, Jack again came home drunk. ‘The following day, he was found dead. G Jill was charged with parricide but raised the defense of “battered woman syndrome.” A. Define “Battered Woman Syndrome.” (2%) “Battered Woman Syndrome” referstoascientifically defined pattern of paychological and behavioral symptoms found in women living in battering relation-ships as a result of cumulative abuse (Section 3[dj, Rep. Act No. 9262}. 17B. Whatare the three phases of the “Battered Woman Syndrome”? (3 The three (3) phases of the “Battered Woman Syndrome” are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving, or non-violent phase (People v. Genosa, G.R. No. 135981, January 15, 2004). C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self- defense under the Revised Penal Code? Explain. (2%) Yes. Section 26 of Rep. Act No. 9262 provides that vietim-survivors who. are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. xX Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. ‘The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petitions for probation? Explain. (3%) 18 ‘The brothers’ petition for probation should both be denied. ‘Matt’s petition for probation shall be denied because he was convicted for drug-trafficking. Section 24 of RA 9165 (Comprehensive Dangerous Drug Act of 2002) ‘expressly provides, “Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the court, cannot availof the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.” ‘On the other hand, Jeff's application for probation ‘cannot also be entertained or granted because he has already appealed his conviction by the trial court (Section 4, P.D. 968, as amended}. ‘XXxI Because peace negotiations on the Spratlys situation hud failed, the People’s Republic of China declared war against the Philippines. Myra, a Filipina who lives with her Malian expatriate boyfriend, discovered e-mail correspondence between him and a certain General Tung, Kut Su of China. ‘On March 12, 2010, Myra discovered that on cven date her boyfriend had sent an e-mail to General Tung Kat Su, in which he agreed to provide vital ihformation on the military defense of the Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime? Explain. (3%) Yes, Myra committed the crime of Misprision of ‘Treason under Art. 116 of the Revised Penal Code, for falling to report or make known “as soon as possible” to the governor or provincial fiscal or to the mayor or fiscal 19ofthe City where she resides, the conspiracy between her Italian boyfriend and the Chinese General to commit treason against the Philippine Government in time of war. She decided to report the matter to the proper authorities only after two (2) weeks. XXII Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide in the maid’s quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunt’s house. A week later, Jake was apprehended by the police. Can Jake's mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (3 %) Obviously, Jake’s mother was aware of her son’s having committed a felony, such that her act of harboring and concealing him renders her liable as an accessory. But being an ascendant of Jake, she is exempt from criminal lability by express provision of Article 20 of the Revised Penal Code. On the other hand, the criminal liability of Jake’s aunt depends on her knowledge of the felony committed by Jake. If she had knowledge of his commission of the felony, her act of harboring ang concealing Jake would render her criminally liable as accessory to the crime of murder; otherwise without knowledge of Jake's commission of the felony, she would not be liable. XxxI Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded a taxicab, held the driver at gunpoint and took the latter’s earnings. 20 A. What crime, if any, did the four commit? Knumerate the elements of the crime. (2%) ‘The crime committed is robbery by a band since there were four (4) offenders acting in concert in committing the robbery and all the four were armed. ‘The elements of this crime are: 1. unlawful taking of personal property belonging to another (the earnings of the taxi-driver); 2. intent to gain in the taking (of the earnings which belong to the taxi-driver); 3. violence against or intimidation of person or force upon things was employed in the taking; and 4. there were more than three armed malefactors taking part in the commission of the robbery (Art. 296 in relation to Art, 294, Revised Penal Code) 1B. Would your answer be the same if they killed the diver? Explain. (2%) No, the crime becomes robbery with homicide and all the fraternity brothers are liable, The existence ofa band ahall be appreciated only as generic aggravating olrcumstance. Also, ifthe firearms used were unlicensed, the same would only be taken as generic aggravating otroumstance as provided by the Rep. Act No. 8294 (People v, Bolinget, G.R. Nos. 137949-52, December 11, 2003). - 00000 - 212009 BAR EXAMINATION PARTI I ‘TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) la] Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist. True. Rape is now a crime against persons and, like the crime of homicide, is embraced in the same Title of the Revised Penal Code under which Amado had been previously convicted by final judgment. The absolute pardon granted him for rape, only excused him from serving the sentence for rape but did not erase the effects of the conviction therefore unless expressly remitted by the pardon. [b] The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery. False. The proper offense is exploitation of child labor (Art. 273, RPC). Exploitation of child labor is committed by a person, who under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody ofa minor, shall against the minor’s will, retain him in his services. 22 [cl] The use of an unlicensed firearm in homicide is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. False. Offsetting may not take place because the use of an unlicensed firearm in homicide or murder is a specific aggravating circumstance provided for by Rep. Act No. 8294. It is not one of the generic aggravating circumstances under Art.14 of the Revised Penal Code (People v. Avecilla, 351 SCRA 635 [2001]). Id] Aperson who, on the occasion of a robbery, kills a bystander by accident is liable for two separate crimes: robbery and reckless imprudence resulting in homicide. ESTED ANSWER: False. Only one crime of robbery with homicide is constituted because the Revised Penal Code punishes the crimes as only one indivisible offense when a killing, whether intentional or accidental, was committed by reason or on occasion of a robbery (Art. 294{1], RPC; People v. Mabasa, 65 Phil. 568 [1938]). le] Apoliceman who, without a judicial order, enters ‘a private house over the owner's opposition is guilty of trespass to dwelling. False. The crime committed by the policeman in this case is violation of domicile because the official duties of a policeman carry with it an authority to make searches and seizure upon judicial order. He is therefore acting under color of his official authority (Art. 128, RPC). 231 Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (4%) Yes, I will grant the petition because the sentence that was evaded proceeded from the crime of Rebellion which has been obliterated by the grant of amnesty tothe offender (Art. 89 [3], RPC). Since the amnesty erased the criminal complexion of the act committed by the offender as a crime of rebellion and rendered such act as though innocent, the sentence lost its legal basis. The purported evasion thereof therefore cannot subsist (People v. Patriarea, 341 SCRA 464[2000}). Amnesty obliterates, not only the basis of conviction, but also all the legal effects thereof. Rigoberto gate-crashed the 71“ birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter's hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against 24 Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days. [a] _ Is Rigoberto guilty of Direct Assault? Why or why not? (3%) No, Rigoberto is not guilty of Direct Assault because Judge Lorenzo has ceased to be a judge when he was attacked. He has retired (71 yrs. old) from his position as ‘4 person in authority when he was attacked. Hence, the attack on him cannot be regarded as against a person in authority anymore, [b] Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (3%) Yes. Rigoberto is guilty of Direct Assault because the employment of violence was by reason of an actual performance of a duty by the offended party acting as a practicing lawyer. Lawyers are considered persons in authority by virtue of Batas Pambansa Blg. 873, which states that lawyers in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. But the crime having been committed 10 years ago, may have already prescribed because it is punishable by a correctional penalty. Vv Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie's girlfriend. Charliewent to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog, Actually, Charlie intended to use the poison on Brad, ‘The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad. fa] Did Charlie commit any crime? If so, what and why? If not, why not? (3%) SUBSESTD ANSWER: Charlie committed an impossible crime of murder. His act of mixing the non-toxic powder with Brad’s food, done with intent to kill, would have constituted murder which is a crime against persons, had it not been for the employment of a means which, unknown to him, is ineffectual (Art.4, par. 2, RPC). fb] Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%) No, the answer would not be the same. Charlie would be criminally liable for less serious physical injuries because his act of mixing the powder with Brad’s food was, done with felonious intent and was the proximate cause of Brad’s illness for 10 days. It cannot constitute attempted murder, although done with intent to kill, because the means employed is inherently ineffectual to cause death and the crime committed must be directly linked to the means employed, not to the intent. Liability foran impossible crime can only arise froma consummated act. 26 v ywed Ruben’s gun, saying that he would weit oil Freie, Because Ruben also resented Freddie, he readily lent his gun, but old Ponciano: “0, pagkabari! mo kay Freddie, isauli mo Kaagad, ha,* Later, Ponciano killed Freddie, but used a knife becatise he did not want Freddie’s neighbors to hear the gunshot. {a] What, if any, is the liability of Ruben? Explain. (3%) Ruben’s liability is that of an accomplice onl because he merely cooperated in Ponciano’ determination to kill Freddie, Such cooperation is not Indispensable to the killing, as in fact the killing was carried out without the use of Ruben’s gun. Neither may Ruben be regarded as co-conspirator since he was not a rticipant in the decision-making of Ponciano to Freddie; he merely cooperated incarrying out the criminal plan which was already in place (Art. 18, RPC). ALTERRATIVE ARSWER: sn cannot be held Hable as an accomplice in the waning of Freddie because his act of londing his gua to Fonciano did not have a relation between the ante dane by the latter to that attributed to Ruben. Even ifRuben not lend his gun, Ponciano would have consummated the act of killing Freddie. In other words, Ruben’s act in Jending his gun was not a necessary act to enable Pone! to consummate the crime. tead of Ib} Would your answer be the’ same if, inst " Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%) 27SUGEESTED ANSWER: No, The answer would not be the same because Ruben lent his gun purposely for the killing of Freddie only, not for any other killing. Ponciano’s using Ruben's gun in killing a person other than Freddie is beyond Ruben’s criminal intent and willing involvement. Only Ponciano will answer for the crime against Manuel. It has been ruled that when the owner of the gun knew that it would be used to kill a particular person, but the offender used it to kill another person, the owner of the gun is not an accomplice as to the killing of the other person. While there was community of design to kill Freddie between Ponciano and Ruben, there was none with respect to the killing of Manuel. ALTERAATIVE ANSWER: ‘Yes, The answer would be same because Ruben lent his gun to Ponciano with knowledge that it would be used in killing a person, thus with knowledge that the gun would be used to commit a crime. It is of no moment who was killed, so long as Ruben is aware when he lent the gun that it would be used to commit a crime. vI Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but he was so scared to tell the authorities about it. On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed. Is Baldo’s contention correct? Explain. (3%) 28 (SUCSESTED ANSWER: No, Baldo’s contention is not correct because the orime committed has not yet prescribed. The prescriptive period of the crime committed commenced to run only ‘after it was reported to the police on January 2, 1970, not on the date it was clandestinely committed on January 2, 1960. Under the discovery rule, which governs when a crime is not publicly committed, the prescriptive period ofa crime commences to run only from the day on which the crime is discovered by the offended party, the Authorities or their agents: inthis case, fromJanuary 2, 1970 when it was made known to the police authorities until January 6, 1980, when Baldo was arrested and charged. The killing committed, whether it be homicide or murder, is punishable by an afflictive penalty which prescribes in twenty (20) years, whereas only around ten (10) years had lapsed from January 2, 1970 (when the authorities discovered the commission of the crime) to January 6, 1920 (when the accused was charged jn court). vir Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in pluintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00. Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official enpacity, has to intervene under the law. While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be the same act under R.A, 3019. 29Is Charina correct? Explain. (3%) SUGGESTED ANSWER: No, Charina is not correct. Although the charge for violation of Rep. Act No. 3019 and the charge for Indirect Bribery (Art. 211, RPC) arose from the same act, the elements of the violation charged under Rep. Act No. 3019 are not the same as the felony charged for Indirect Bribery under the Rev. Penal Code (Mejia v. Pamaran, 160 SCRA 457 [1988]). Hence, the crimes charged are separate and distinct from each other, with different penalties. The two charges do not constitute aground for ‘@ motion to dismiss or motion to quash, as there is no Jeopardy against the accused. val While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed. [a] What crime orcrimes, ifany, had been committed? Explain. (3%) ‘The crimes committed are Robbery with homicide (Art. 294{1], RPC), a single indivisible offense, and Direct Assault with Multiple Attempted Homicide, a complex crime (Art. 48, Art. 148 and Art. 249, RPC; People v. Gayrama, 60 Phil, 796 [1934)). Robbery with Homicide was committed because one of the responding policemen was killed by reason or on occasion of the robbery being committed. The complex crime of Direct Assault with Multiple Attempted Homicide was committed in respect of the offender’s firing guns at the responding policemen who are agents of person in 30 Authority performing their duty when fired at to frustrate tuoh performance. (People vs. Ladjaalam, G.R. Nos. 126149-51, Sept 19, 2000) Ib] Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. (2%) (GOREESTED ANSWER: The crime of which Braulio, Ciriaco and Domingo can tbe charged is Robbery with Homicide (Art.294[1], RPC) because the killing resulted by reason or on the occasion @fthe robbery. It is of no moment that the person killed le one of the robbers. A killing by reason or on the ocasion of the robbery, whether deliberate oraccidental, will be a component of the crime of Robbery with Homicide, @ single indivisible offense, as long as it is intimately fonnected to the robbery. [cl Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%) Braulio shall be Hable for Robbery with Homicide |. 294[1], RPC) for killing Alfredo, since the killing was i. son of the robbery. Ciriaco and Domingo having @enspired only in the commission of the robbery, should Jmour Liability only for the crime conspired upon—the Webbery, unless they were with Braulio during the killing nd could have prevented the same but they did not, in which case they shall also be liable for Robbery with Womicide. 31It is of no moment that the person killed is one of the robbers and he was killed during the robbery (People v. Barot, 89 SCRA 16 [1979}). x Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: “Tigil! Kidnap ito!” Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse. What crime or crimes, if any, did Virgilio commit? Explain. (5%) (SUSSESTED ANSWER: ‘The crime committed against Jeremias, the 6 year- old child, is Kidnapping and Serious Mlegal Detention under Art 267 (4), RPC. The evident criminal intent ofthe offender, Virgilio, is to lock up the child to demand ransom. Whether or not the ransom was eventually obtained will not affect the crime committed because the demand for ransom is not an element of the crime; it only qualifies the penalty to death but the imposition of this Penalty is now prohibited by Rep. Act. No. 9346. ‘As to Daday, the nanny of the child who was told to remain in the van and take care of the child until the ransom is paid, the crime committed is Serious Hegal 32 Detention because the offended party deprived of liberty a female (Art. 267, par. 4, RPC). Asto Juanito, the driver of the van who was seriously intimidated with a gun pointed at him and directed to stop the van and allow the gun-man to board the same, and thereafter to drive to a deserted place, the crime committed by Virgilio is Grave Coercion (Art. 286, RPC) and Slight Ilegal Detention (Art. 268, RPC) for holding the driver before he was allowed to go. x To secure a release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented. She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pendingcase. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent, were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of court, Edwin, and the jail warden? Explain your answer. (5% SUBGESTED ANSWER: ‘The crimes committed in this case are as follows: @. Chito committed the crimes of - 33b. 1, Delivery of Prisoners from Jail (Art. 156, RPC) for working out the escape of prisoners Willy and Vincent; 2, Twocounts of Corruption of Public Officials (Art. 212, RPC); and 3, Falsification of Public Documents, as a principal by inducement (Art. 172 [1], RPC). Willy committed the crime of Delivery of Prisoners from Jail (Art. 156, RPC)asa principal ‘by indispensable cooperation if he was aware of the criminal plan of Chito to have them escape from prison and he did escape pursuant to such criminal plan; otherwise he would not be liable for said crime if he escaped pursuant to human instinct only. Vincent, being a prisoner serving sentence by final judgment, committed the crime of Evasion of Service of Sentence (Art. 157, RPC) for escaping during the term of his imprisonment. ‘The Branch Clerk of Court committed the crimes oft 1, Direct Bribery (Art. 210, RPC) for accepting ‘the P50,000.00 ~ in consideration of the Order she issued to enable the prisoners to get out of jail; 2. Falsification of Public Document for forging the judge’s signature on said Order (Art. 171, RPC); 3. Delivery of Prisoners from Jail (Art. 156, RPC), as a co-principal of Chito by indispensable cooperation for making the false Order and forging the judge’s signature thereon, to enable the prisoners to get out of jail; 4. Evasion of Service of Sentence (Art. 157, RPC); as a co-principal of Vincent by indispensable cooperation for making the false Order that enabled Vincent to evade service of his sentence; Edwin, the jail guard who escorted the prisoners in getting out of jail, committed the crimes of- 1. Infidelity in the Custody of Prisoners, 34 specifically conniving with or consenting to Evasion for leaving unguarded the prisoners escorted by him and provide the ‘an opportunity to escape (Art. 223, RPC} 2. Direct Bribery for receiving the P50,000.00 ‘as consideration for leaving the prisoners unguarded and allowing them the opportunity to escape (Art. 210, RPC); {The jail warden did not commit nor incur crime there being no showing that he was aware of what his subordinates had done nor of any negligence on his part that would amount to infidelity in the custody of prisoners. PART I xr ‘TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than two (2) sentences. (5%) [a] Life imprisonment is a penalty more favorable to the convict than reclusion perpetua. False. Life imprisonment is unfavorable toa convict because the penalty is without a fixed duration, unlike the penalty of reclusion perpetua which has a fized duration of 40 years and the convict may be eligible for pardon after 30 years of imprisonment (People v. Penillos, 205 SCRAS46[1992}}. [b] Voluntary surrender isa mitigating circumstance in all acts and omissions punishable under the Revised Penal Code. 35False. Voluntary surrender may not be appreciated in cases of criminal negligence under Art. 365 since in such cases, the courts are authorized to impose a penalty without considering Art. 62 regarding mitigating and aggravating circumstances. {c]_ Ina prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles, found in his possession had been the subject of robbery. SUS&ESTED ANSWER: False. Fencing is committed if the accused “should have known” that the goods or articles had been the subject of theft or robbery (P.D. 1612, Sec. 2[a]). Mere possession of the stolen goods gives rise to the prima facie presumption of fencing. fd] Inthe crime of libel, truth isan absolute defense. (SUGGESTED ANSWER: False. Article 361 of the RPC provides that proof of truth shall be admissible in libel cases only if the same imputes a crime or is made against a public officer with respect to facts related to the discharge of their official duties, and moreover must have been published’ with good motives and for justifiable ends. Hence, “truth” as a defense, on its own, is not enough. 36 le] For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must ‘be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes. (SUGGESTED ANSWER: False. There is nothing in the law which requires that the accused must know the identities of the culprits involved in the commission of the predicate crimes. To establish liability under RA 9160, it is sufficient that proceeds of an unlawful activity are transacted, making them appear to have originated from legitimate sources. xi [a] In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and ‘one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Codeis punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years, Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (3%) Under the Indeterminate Sentence Law, the minimum of the sentence shall be anywhere within the range of 6 yearsand 1 day to 12 years imprisonment while the maximum of the sentence shall be anywhere within the range of Reclusion Temporal minimum i.e., not lower than 12 yrs. and 1 day to not more than 14 yrs. and 8 months. 37[o] Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%) ‘SUBSESTED ANSWER: No. My answer will not be the same because violations of Rep. Act 9165 are mala prohibita in which mitigating and aggravating circumstances are not appreciated. Although in People v. Simon (234 SCRA555[1994}), it was held that Art. 64 can be applied if the special law adopted the nomenclature of penalties provided under the RPC, such pronouncement cannot be applied in the instant case because the penalties for illegal possession of drugs under RA 9165 do not follow the technical nomenclature of penalties in the RPC and thus, cannot be divided into periods. Hence, the existence of mitigating and aggravating circumstances cannot be appreciated. xm Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to-quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22. [a] What is delito continuado? (1%) (SUSSESTED ANSWER: Delito continuado refers to a crime constituted by several overt acts committed by the offender in one place, at about the same time, and all such overt acts violate one and the same provision of penal law, thus demonstrating that all such acts are the product of a single indivisible criminal resolution. Hence, all said acts are considered as one crime only. [b] Is Angelo’s contention tenable? Explain. (4%) (SUGGESTED ANSWER: No. His contention is not tenable. He committed as many counts of estafa against the 500 victims and 2000 counts of violation of BP 22, since each swindling is achieved through distinct fraudulent machinations contrived at different times or dates, and in different amounts. Moreover, his drawing separate checks payable to each payee is a separate criminal resolution, as they must be of different amounts and of different dates. He acted with separate fraudulent intent against each swindling victim and had distinct criminal intent in drawing and issuing eachcheck. It cannot be maintained that his acts are the product of one criminal resolution only. ALTERNATIVE ANSWER: ‘Yes. Angelo committed only one count of estafa and one count of violation of BP 22 because his acts were propelled by one and the same intent to defraud (Santiago v. Garchitorena, 228 SCRA 214 [1993}). xv Following his arrest after a valid buy-bust operation, ‘Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility ofthe evidenee because the police officers who conducted the buy- bust operation failed to observe the requisite “chain of fustody” of the evidence confiscated and/or seisut from im, What is the “chain of custody” ustody” requirement in dru, cttenses? What is its rationale? What is the effect of failure to observe the requirement? (3%) SUGSESTED ANSWER: plant ny of seized dangerous drugs, controlled chomieans Plant sources of dangerous drugs, and laboratory cauipment for dangerous drugs from the tice of tamiseation/seizure thereof from the offender, te its wiasion/offer in court as evidence of the criminal Ficlation, and for destruction. (Dangerous Drugs Board Regulation No.1 Series of 2002) Failure to observe the “chain of custody” requirement renders the evidence ‘questionable, dot {rustworthy and insufficient to prove the corpus delicti beyond reasonable doubt. Hence, Tommy would be ‘acquitted on reasonable doubt. 40 xv Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the processof intervention or diversion. [a] Whatis intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%) (SUGGESTED ANSWER: The two terms are different. “Intervention” refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. This is available to a child 15 years old or less at the time of the commission of the crime or although over 15 but below 18 years old at the time of commission of the crime, the child acted without discernment. “Diversion” refers toanalternative, child-appropriate Process of determining the responsibility and treatment ofa child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. This process governs when the child is over 15 years old but below 18 at the time of the commission of the crime and he acted with discernment. Yes. Joe is entitled to diversion. Being only 17 years old at the time he committed the crime of homicide, he is treated as a child in conflict with the law under RA 9344, al{b] Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. (2%) No. The judge should not suspend sentence anymore because Joe was already 21 years old. Suspension of sentence is availing under Rep. Act 9344 only until a child reaches the maximum age of twenty-one (21) years. [c]_ Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain. 2%) ‘Yes, He would be eligible for probation because the penalty imposable on Joe will not exceed 6 years imprisonment. Even if it would be considered that the crime committed was punishable by death, the penalty as far as Joe is concerned can only be reclusion perpetua because Rep. Act 9344 forbids the imposition of the capital punishment upon offenders thereunder. The murder being attempted only, the prescribed penalty is two degree lower than reclusion perpetua; hence, prision mayor. Because Joe was 17 years old when he committed the crime, the penalty of prision mayor should be lowered further by one degree because his minority is a privileged mitigating circumstance; hence, prision correccionalor imprisonment within the range of six months and 1 day to 6 years is the imposable. 42 XVI Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for arice production livelihood project.. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non- existent individuals, received the money. Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (4%) ‘The charge of malversation through falsification is not correct because the falsifications of several documents were not necessary means to obtain the money that were malversed, The falsifications were committed to cover up or hide the malversation and therefore, should be separately treated from malversation. The given facts state that Roger and Jessie falsified disbursement vouchers and supporting documents “in order to make it appear” that qualified recipients received the money. Art. 48, RPC on complex crimes is not applicable. ‘They should be charged of violation of Section 3(e) of Rep. Act 3019 for the breach of public trust and undue injury caused to the Goverment. The violation is a crime malum prohibitum. 43XVII Wenceslao and Loretta were staying in the same boarding house, occupying differentrooms. Onelate evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry. la] What crime or crimes, if any, did Wenceslao commit? Explain. (4%) SUGGESTED ANSWER: Wencesiao committed the following crimes: (1) the special complex crime of rape with homicide (2) theft and {3) unlawful possession of picklocks and similar tools under Art, 304, RPC. His act of having carnal knowledge of Loretta against her will and with the use of force and violence constituted rape, plus the killing of Loretta by reason or on the occasion of the rape, gave rise to the special complex crime of rape with homicide. Since the taking of the jewelry was an afterthought as it was done only when he was about to leave the room and when Loretta was already dead, the same constitutes theft. His possession and use of the picklock “without lawful cause” is by itself punishable under Art. 304, RPC. fb] Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (3%) Dwelling is aggravating because the crimes were committed in the privacy of Loretta’s room which in law is considered as her dwelling. It is well settled that “dwelling” includes a room in a boarding house being occupied by the offended party where she enjoys privacy, peace of mind and sanctity of an abode. 44 Nocturnity or nighttime is also aggvavating becauts although it was not purposely or especially sought for by Wenceslao, nighttime was obviously taken advantaged of by him in committing the other crimes. Under the objective test, nocturnity is aggravating when taken advantaged of by the offender during the commission of the crime thus facilitating the same. The use ofa picklock to enter the room of the victim is not an aggravating circumstance under Art. 14 of the Code but punished as, a crime by itself where the offender has no lawful cause for possessing it. The use of picklocks is equivalent to force upon things in robbery with force upon things. [ce]. Would your answer to {a] be the same if, despite the serious stab wounds she sustained, Loretta survived? Explain. (3%) (SUSSESTED ANSWER: No, the answer will be different. In that case, the crimes committed would be four separate crimes of (1) rape (2) frustrated homicide or murder (3) theft and (4) unlawful possession and use of picklocks under Art. 304, RPC. The special complex crime of rape with homicide is constituted only when both the rape and the killing are consummated; when one or both of them are not consummated, they are to be charged and punished separately. In any event, the possession of the picklock “without lawful cause”, more so its use in an unlawful entry is punished as a crime by itself. XVII At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her. [a] Whatcrimeorcrimes, ifany, did Leoncio commit? Explain. (3%)SUGGESTED ANSWER: Leoncio committed the crime of unjust vexation only because the act was done in the course of dancing. ‘The act of dipping his private parts in Evelyn’s buttocks during a very seductive dance, although offensive to Evelyn, may be viewed as part of a dirty dancing. Lewd intent cannot simply be presumed from the act of dirty dancing. The fact that the act was perpetrated ina public place and with an audience, negates lewd designs or lascivious intent, which is essential in the crime of acts oflasciviousness. [b]_ Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn's buttocks? Explain. (3%) (SUGEESTED ANSWER: ‘The crime would then be acts of lasciviousnes: ‘That the music for dancing had already stopped, puts an end to any pretense of dancing by Leoncio. His continued dirty acts absent the dancing as there was no music anymore is patently lewd and lascivious. More so, Evelyn already protested Leoncio’s lewd acts in the course of dancing. Sowhere the dance ended, Leoncio’s continued dirty acts cannot be veiled as still part of dancing. ‘xIX Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as, ‘a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced them. The patient 46 survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier. Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. (4%) Delmo was correctly charged with the crime of frustrated murder qualified by treachery—not evident premeditation because the victim was different from the one premeditated against. Delmo has performed all the acts of execution that would produce the death of the victim but for reasons independent of the will of the perpetrator, the death of the victim was not accomplished. ‘Treachery qualifies the crime, because the means, manner and method of committing the intended killing were consciously adopted to insure its execution without risk that may arise from the defense the victim may make. Evident premeditation is absorbed in the treachery. a72008 BAR EXAMINATION 1 After due hearing on a petition for a writ of amparo founded on the acts of enforced disappearance and extralegal killing of the son of the complainant allegedly done by the respondent military officers, the court granted the petition, May the military officers be criminally charged in court with enforced disappearance and extralegal killing? Explain fully. (39%) SUGGESTED ANSWI a) No. “Enforced disappearance and extralegal killing” is not per se a criminal offense although it is wrongful. The grant of a writ of amparo only provides a relief; it does not establish a basis for a crime. Unless the writ was issued because of specific overt acts shown to have been committed by the respondent military officers and such acts are crimes under penal laws, no criminal charge may be routinely filed just because the petition for the writ was granted. b) Are human rights violations considered as crimes in the Philippines? Explain. (3%) SUGGESTED ANSWER: b) Not necessarily, since there are human rights violations which do not amount to criminal offenses. In this country, there can be no crime when there is no law punishing an act or omission as a crime. 1 While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo 48 it him, but Paolo ignored him. To prevent his car from belogcarnapped, Carlos drew his gun, aimed atthe rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an ‘oncoming tricycle, killing the tricycle driver. a) What is the criminal liability of Carlos, if any? Explain. (4%) ‘SUGGESTEDANSWER: Carlos did sit incur criminal liability because bis act of fring at the rent wheel of the car to stop the vehicle and prevent Paolo from taking away his (Carios’) car is neither done with doloner culpa. The act does not constitute a crime; it is a reasonable exercise of his right to prevent or repel an actual unlawful physical invasion or ‘usurpation of his property pursuant to Art. 429 ofthe Civil Code. b) What is the criminal liability of Paolo, if any? Explain. (4%) sl D. 7 ») Paolo is criminally lable for (1) carnapping under Rep. Act No. 6539 for driving away the moter vehlcle of Carlos against the latter’s will and obviously with intent to gain and (2) for homicide for the death of the tricycle driver which resulted from the criminal act deliberately being committed by Paolo (which is the carnapping), The homicide was the result of praeter intentlonemand not a component of the crime ofearmapping ora result of reckless imprudence or of simple negligence. ANOTHER SUGGESTED ANSWER: . b) Paolo is criminally liable for qualified theft because the object taken isa motor vehicle (Art. 310, RPC) and the taking was simply without the consent of Carlos, the owner of the motor vehicle. 49Since the death of the tricycle driver was brought about by Paolo’s felonious taking of Carlos’ car, Paolo is liable for homicide because his act was the proximate cause thereof. ANOTHER ALTERNATIVE SUGGESTED ANSWI b) Paoloisliable for the complex crime of frustrated robbery, with homicide and damage to property (tricycle) in trying to rob the car. This resulted in the shooting of the car by Carlos and the subsequent collision destroying the tricycle and the death of the driver. Olimpio caught a cold and was running a fever. His doctor prescribed paracetamol. Olimpio went to a drug store with the prescription, and the pharmacist sold him three (3) tablets. Upon arriving home, he took a tablet. One hour later, he had a seizure and died. The autopsy showed that the tablet he had taken was not paracetamol but a pill to which he was allergic. The pharmacist was charged with murder. Is the charge proper? If not, what should it be? Explain. (6%) ‘SUGGESTED ANSWER: The pharmacist committed a serious mistake. But the mistake could not characterize the death as murder because the specific intent to kill the victim was absent. ‘The pharmacist could not be liable for murder. ‘The pharmacist should be charged instead with reckless imprudence resulting in homicide (Art. 365, RPC) because Olimpio’s death was the result of the pharmacist’s serious negligence or imprudence as there is no specific intent to kill and no requisite qualifying circumstance. 50 wv Manolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to Domeng his desire to, ‘borrow his revolver. Domeng lent it. Manolo shot Cece in Manila with Domeng’s revolver. As his gun was used in the killing, Domeng asked Mayor Tan to help him escape. ‘The mayor gave Domeng P5,000 and told him to proceed to Mindanao to hide. Domeng went to Mindanao. The mayor was later charged as. an accessory toCece’s murder. a) Canhe be held liable for the charge? Explain. (4%) ‘SUGGESTED ANSWER: a) Giving Domeng the benefit of a milder criminal responsibility of an accomplice, not of a co-principal by indispensable cooperation of Manolo, Mayor Tan could not be liable as an accessory to Cece’s murder. To incur criminal liability of an accessory for helping or assisting in the escape of an offender, he must be a principal of the crime committed. Unless Domeng would be considered as a_co-principal by indispensable cooperation in the commission of the murder, the Mayor, by assisting him to ‘escape, would be an accessory to the felony. Can he be held liable for any other offense? Explain fully. (3%) SUGGESTED ANSWER: ») Although the Mayor may not be held liable as an. accessory to the killing of Cece, he may be held liable for obstruction of justice under Presidential Decree No. 1829 for assisting Domeng, who was involved in the commission ofa crime, to escape from Manila to Mindanao. v Eman, a vagrant, found a bag containing identification cards and a diamond ring along Roxas Blvd. 51Knowing that it was not his, he went to the nearest police station to seek help in finding the owner of the bag. At the precinct PO1 Melvin attended to him, In the investigation Eman proposed to PO1 Melvin, “in case you don't find the owner Iet’s just pawn the ring and split the proceeds fifty- fifty (50/50).” PO1 Melvin then went straight to the pawnshop and pawned the ring for P50,000. Eman never saw PO1 Melvin again. a) What is the criminal liability of Eman, if any? Explain. (3%) SUGG: INSWER: a) _ Eman has nocriminal liability, unless he received part of the proceeds of the pawned ring. The facts do not state that Eman received any part of the P50,000.00 proceeds of the ring pledged. The facts state that after turning over the bag to PO1 Melvin, Eman never saw POL Melvin again. The proposal Eman made to PO1 Melvin is not a crime as to bring about criminal liability. b) What is the criminal liability of POL Melvin, if any? Explain. (3%) b) PO1 Melvin is criminally liable for theft for having pawned the cing, which he does not own, and appropriating the proceeds thereof without the consent of the owner thus demonstrating intent to gain. PO1 Melvin is simply substituted to the possession Eman had when the latter found the bag containing the ring. He was under a legal obligation to deliver it to its owner and his failure to do so amounts to a “taking” which would constitute theft when shown to be motivated by intent to gain (Art. 308, par. 1, RPC; People v. Avila, 44 Phil. 720, 727 [1923})). 52 uw Hubert and Eunice were married in the Philippines. Hubert took graduate studies in New York and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The first wife, Eunice, heard about the marriage and secured a copy of the marriage contract in New York. Eunice filed a case of bigamy against Hubert in the Philippines. a) Will the case prosper? Explain. (4%) ‘SUGGESTED ANSWER: 8) No, acase for bigamy filed in the Philippines will not prosper because the bigamous marriage appears to have been committed in New York, U.S.A., not in the Philippines. The governing rule of procedure as to the place where the criminal action is to be instituted directs that the criminal action should be instituted and tried in the court of the municipality or territory where the offense was committed, or where any of its essential ingredients occurred if it were a continuing crime. In criminal cases, the venue where the action should be instituted is jurisdictional; if this is not complied with, it would render the prosecution invalid or void. _IfBunice gave her consent to the second marriage, what will your answer be? Explain. (3%) si TED ANSWER: b) Theanswerwould be the same even ifthe wife by the first marriage, which is subsisting, gave her consent to the second marriage. Bigamy is a public crime and not subject to agreement between the victim and the accused. Moreover, the legal obstacle to the institution of a case for bigamy in the Philippines is jurisdictional and cannot be excused or waived by the parties affected. 53vir ‘The inter-island vessel M/V Viva Lines J, while cruising off Batanes, was forced to seck shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived ina speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry A passenger of M/V Viva Lines I, Dodong, took advantage of the confusion to settle an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court. a) Was the charge of qualified. piracy against the three persons (Max, Baldoand Bogart} who boarded the inter-island vessel correct? Explain. (4%) SUGGES’ ANSW1 a) The charge is correct. Qualified Piracy was committed when the offenders seized the vessel by firing on or boarding the same. In the problem, they even went further by divesting the passengers of their money and jewelry. The vessel was anchored in the harbor of Kaoshiung, Taiwan and it is submitted that the crime was committed within the territorial jurisdiction of another country. The Supreme Court has ruled that the high seas contemplated under Art. 122 of the Revised Penal Code includes the three-mile limit of any state (People v. Lot-lo, et al. 43 Phil. 19 [1922). Moreover, piracy is an offense that can be tried anywhere because it is a crime against the Law of Nations. ANOTHER SUGGESTED ANSWER: a) _No,because the territoriality principle of criminal law applies. The crime happened in Taiwan where the vessel was anchored. It was not committed in the high seas or in Philippine waters. b} Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. (3 54 uta Piracy boos so commiting precy cere in ase was his mind nor did he have any involvement in the piracy committed. He merely took advantage of the situation in Killing the passenger. He should be charged with murder ‘since there was evident premeditation and intent to kill. va Francis and Joan were sweethearts, but their parents had objected to their relationship because they were first cousins, They forged a pact in writing to commit suicide. ‘The agreement was to shoot each other in the head which they did. Joan died. Due to. medical assistance, Francis survived. Is Francis criminally liable for the death of Joan? Explain. (5%) ‘Yes, Francis is criminally Hable for Joan’s death. His act of shooting her, although done pursuant to a solemn pact, isnevertheless felonious and is the proximate cause of Joan’s death (Art. 4, par. 1, RPC). Moreover, the mere act of giving assistance to a suicide is a crime (Art. 253, RPC}. x Dennis leased his apartment to Myla for P10,000 a month. Myla failed to pay the rent for 3 months. Gabriel, the son of Dennis, prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the payment. a) Did Gabriel commit a crime? Explain. (4%) 55‘SUGGESTED ANSWER: Yes. Gabriel committed a crime; it was either the crime of falsification of a private document (if damage or at least intent to cause damage could be proved) or the crime of swindling only. It could not be both falsification and swindling or a complex crime of estafa through falsification since the document falsified is a private document. The two crimes cannot go together. Can Gabriel invoke his relationship with Dennis to avoid criminal liability? Explain. (3%) SUGGESTED ANSWE! If Gabriel would be made criminally liable for falsification of a private document, he cannot invoke his relationship with Dennis, his father, to avoid criminal liability because Art. 332 of the Revised Penal Code provides exemption from criminal liability in crimes against property only for theft, swindling or malicious mischief but not for falsification of documents. If he would be made criminally liable for swindling, he can invoke his relationship with Dennis because this crime cannot be complexed with falsification ofa private document. The charge could, therefore, stand alone. The exemption in Art. 332 will obtain. x Upon opening a letter containing 17 money orders, the mail carrier forged the signatures of the payees on the money orders and encashed them. What crime or crimes did the mail carrier commit? Explain briefly. (6%) SUGGESTED ANSWER: ‘The mail carrier’s act of opening the letter containing the 17 money orders and encashing them constitutes a 56 continued crime of qualified theft, becwsse the object taken is mail matter and the taking was with evident intent to gain (Art. 310, RPC). Moreover, the mail carrier’s act of forging the signatures of the payces of said money orders constitutes falsification of commercial documents. It was made to appear that the payees signed them when in fact they did not. When the mail carrier encashed the money orders, he defrauded and caused damage to the remitters who gave the cash. The mail carrier further incurred the crime of estafa through falsification of commercial documents, xI Ricky was reviewing for the bar exam when the commander of a vigilante group came to him and showed him a list of five policemen to be liquidated by them for graft and corruption. He was further asked if any of them is innocent. After going over the list, Ricky pointed to two of the policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable? Explain. (7%) SUGGESTED ANSWER: No, Ricky is not criminally liable because he has not done any overt act that the law punishesasacrime. He did not conspire with the vigilante group. Although his act of pointing out two policemen as honest men may imply his acquiescence to the vigilante’s conclusion that the others were corrupt and deserved tobe killed, mere acquiescence to a crime, absent any criminal participation, does not make one a co-conspirator, xm Raissa and Martin are married to each other but had been separated for the last five years. Raissa decided to wed Juan, her suitor, who had no inkling that she was married. 57Raissa and Juan accomplished an application for marriage license which they subscribed and swore to before the Local Civil Registrar. Raissa declared, in the application, that she is single. The marriage license was issued. In due time, the couple were married by the mayor. Raissa and Juan had their first sexual intercourse later in the evening, What crime or crimes, if any, did Raissa commit? Explain briefly. (7%) SUGGESTED ANSWER: Raissa committed the crime of bigamy for contracting ‘@ second marriage while her marriage to Martin is still subsisting. There was neither judicial declaration of dissolution or nullity of the first marriage with Martin nor a judicial declaration of legal absence of Martin. The falsehood she stated in the application for the license which she swore to, althongh felonious, should be considered absorbed in the crime of bigamy since they are routine incidents in contracting any marriage, including @ bigamous marriage. It is absorbed in the crime of bigamy. Raissa also committed adultery by having sexual intercourse with Juan, who is not her husband. She is still legally married to Martin. The intercourse cannot be absorbed in the bigamous marriage because the crime of bigamy was already consummated when adultery wae committed. It should not be overlooked, however, that adultery is a private crime. It requires a complaint solely from the offended spouse. A complaint from Martin is indispensable to prosecute Raissa’s adultery. xm Lucas had been the stay-in houseboy of spouses Nestor and Julia for five years. One night, while Nestor and Julia were out having dinner, Lucas and his friend Pedro gained entry into the masters’ bedroom with the use of a false key ‘They found Julia’s jewelry box in one of the cabinets, which was unlocked. Lucas believed that Julia’s jewelry was inside the box. Unknown to Lucas and Pedro, the box was empty. Pedro took the box and left the bedroom with Lucas. They were shocked when they saw Nestor in the sala, pointing a gun at them. Nestor ordered them to stop and hand over the box. Pedro complied. It turned out that Nestor had just arrived in time to see Lucas and Pedro leaving the masters’ bedroom with the box. State with reasons, the crime or crimes, if any, Lucas and Pedro committed. (7%) ‘SUGGESTED ANSWER: Lucas committed qualified theft. Pedro committed simple theft only. There was taking of personal property, the jewelry box, belonging to another (Julia), with intent to gain and without the consent of the owner but without violence, intimidation of persons or force upon things. ‘The use of a false key is legally considered asa force upon things, if used to gain entry to the house or building but not when used enter a locked room inside such house or building. Thus, the taking only constitutes theft. ‘The crime is qualified theft as to Lucas only, although there is evident conspiracy between him and Pedro, because the circumstance qualifying the theft is personal only to Lucas but not to Pedro. ‘The theft is already consummated because the offenders had already taken out of the cabinet Julia's jewelry box, which she intended to remain in the cabinet. ‘The asportation was completed when they succeeded in taking out Julia’s jewelry box from the cabinet. ANOTHER Si DA Lucas and Pedro may be held liable only for an impossible crime of theft because what they had in mind in taking the jewelry box was to take Julia’s jewelry. However, it turned out to be empty. The impossibility of 59committing the crime of theft is factual or physical since there is no jewelry to steal inside the box. ANOTHER ALTERNATIVE SUGGESTED ANSWER: Lucas and Paolo would also be liable for possession of picklocks or similar tools under Art. 304, in relation to Art. 305 of the Penal Code, xIv Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy the judgment against him in favor of ABC Corporation, a government-owned or controlled corporation with an original charter. However, the representative of the corporation failed to attend the auction sale. Gonzalo, the winning bidder, purchased the property for P100,000 which he paid'to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo lent the amount to Myrna, his officemate, who promised to repay the amount within two months, with interest thereon, However, Myrna reneged on her promise. Despite demands of ABC Corporation, Eliseo failed to remit the said amount. a) State with reasons, the crime or crimes, if any, committed by Eliseo. (4%) SUGGESTED ANSWER: a) The crime committed by Eliseo is malversation since he isa public officer who received the amount in his official capacity; thus he is accountable for it. bj} Would your answer to the first question be the same if ABC Corporation were a private corporation? Explain. (3%) 60 SUGGESTED ANSWER; b) The crime would still be malversation even if ABC Corporation, in whose favor the judgment was rendered, were a private corporation. This is because the P100,000.00 came from the sale of property levied upon or seized upon execution ordered by the court. The property was in custodia legis. Although not strictly public property, it has become impressed withthe character of public property when Eliseo, in his official capacity, conducted the execution sale and received it proceeds. As long as Eliseo has not accounted for and turned over the proceeds officially, he is not relieved of his official accountability. xv Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10,000 a month as “protection money”. With the monthly payments, Roger assured, the ‘syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his establishment destroyed. Antonio refused to pay the protection money. Days later, at around 3:00 in the morrting, Mauro, a member of the criminal syndicate, arrived at Antonio's home and burled a grenade into an open window of the bedroom where Antonio, his wife and their three year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded. State, with reasons, the crime or crimes that had been committed as well as the aggravating circumstances, ifany, attendant thereto. (7%) ‘SUGGESTED ANSWER: By demanding “protection money” under threat and intimidation that the businessman (Antonio) would be kdlled or his establishment destroyed if he would refuse to 61pay the protection money, the crime of grave chreats is committed by Roger, the leader of the crime syndicate. For killing the businessman, his wife and three year- old daughter, the complex crime of multiple murder was. committed by Mauro, a member of the same crime syndicate. The killing is qualified by the use of an explosive (hand grenade). The treachery attending the killing shall be separately appreciated as another aggravating circumstance aside from the use of explosive as the qualifying circumstance. Other aggravating circumstances which may be appreciated are: 1. _ Dwelling, because the killings were committed in the home of the victims who had not given any provocation; 2. Nocturnity, considering that the offenders carried out the killing at around 3:00 AM, indicative of a deliberate choice of nighttime for the commission of the 3. Treachery, under Art. 14, par. 16, RPC, mentioned above, considering that victims were all asleep when killed; and 4. ‘The offense was committed by a person who belongs to an organized/syndicated crime group under the Heinous Crimes Law (Sec. 23 R.A. 7659), amending for this purpose Art, 62(1) of the Revised Penal Code. 2007 BAR EXAMINATION 1 (10%) What are the penalties that may be served simultaneously SUGGESTED ANSWER: ‘The penalties that may be served simultaneously are imprisonment/destierro and: 1) Perpetual absolute disqualification; 2. Perpetual special disqualification; ‘Temporary absolute disqualification; ‘Temporary special disqualification; 8. Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling; 6. Fine;andany principal penalty withitsaccessory penalties. 1 (10%) Tuburcio asked Anastacio to join their group for a “session. Thinking that it was for a mahjong session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio, discovered that it was actually a shabu Session. At that precise time, the place was raided by the police, and Anastacio was among those arrested. What crime can Anastacio be charged with, if any? Explain your answer,SUGGESTED ANSWI Anastacio may not be charged of any crime. Sec. 7 of Rep. Act 9165 on the Comprehensive Dangerous Drugs of 2002 punishes employees and visitors ofa den, dive or resort where dangerous drugs are used in any form. But for a visitor of such place te commit the crime, it is a requisite that he “is aware of the nature of the place as such and shall knowingly visit the same.” ‘These requisites are absent in the facts given. mm (10%) Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon went inside the bank, but were unable to get any money from the vault because the same was protected by a time-delay mechanism. ‘They contented themselves with the customers’ cellphon and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan pulled the car out of the curb, hitting a pedestrian which resulted in the latter’s death, What crime or crimes did Jervis, Marlon and Jonathan commit? Explain your answer. SUGGESTED ANSWER: Jervis and Marlon committed the crime of robbery, while Jonathan committed the special complex crime of robbery with homicide. Jervis and Marlon are criminally liable for the robbery only, because that was the crime conspired upon and actually committed by them, assuming that the taking of the cellphones and the cash from the bank's customers was effected with intimidation. They will not incur liability for the death of the pedestrian because they have nothing to do with it. Only Jonathan will incur liability for the death of the pedestrian, aside from the 64 robbery, because he alone brought about such death. Although the death caused was not intentional but accidental, it shall be a component ofthe special complex crime of robbery with homicide because it was committed in the course of the commission of the robbery. Marlon and Jonathan committed robbery with homicide, because there was conspiracy among them to commit the robbery and the death of the pedestrian was caused on the occasion of the robbery. Even though the death was accidental, it is enough that such death was caused by any of the robbers’ felonious act and on the occasion of the commission of the robbery (People v. Guiapar, 129 SCRA $39 [1984]). Vv (10%) Macky, a security guard, arrived home late one night after rendering overtime. He was shocked to see Joy, his wife, and Ken, his best friend, in the act of having sexual intercourse. Macky pulled out his service gun and shot and killed Ken, Macky was charged with murder for the death of Ken. The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Macky to pay indemnity to the heirs of the victim in the amount of 50,000, (a) Did the court correctly order Macky to pay indemnity even though he was exonerated of murder? Explain your answer. SUGGESTED ANSWER: (a) No, the court did not act correctly in ordering the accused to indemnify the victim. Since the killing of 65Hea was committed under the exceptional circumstances in Article 247, Revised Penal Code, it is the consennce that: no crime was committed in the light of the Fronouncement in People v. Cosicor(79 Phil. 672 1947) backs fe caee Of criminal liability, there would be no legal basis for the award of indemnity when there iene ‘criminal lability. ALTERNATIVE ANSWE} ALTERNATIVE ANSWER: Yes, because the crime punishable by destierro was committed, which is death under exceptional circumstances under Art. 247 of the Revised Penal Code, (b) While serving his sentence, Macky entered the prohibited area and had a pot session with Ivy (Joy's sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of use of prohibited substances? Explain your UGGESTED ANSWER: (b) No, Macky is not entitled to the benefit of the Eudeterminate Sentence Law (Act 4103, as amended) for him an destiorrro. See. 2 of the said law expressly Provides that the law shall not apply to those whe shall have “evaded sentence”. ALTERNATIVE ANSWER: rehabilitation in a government center for a minimum period of six (6) months (See. 15, R.A. 9165). The Indeterminate Sentence Law does not apply when the Penalty is imprisonment not exceeding one year, v (10%) (2) Distinguish between an accomplice and a conspirator SUGGESTED ANSWER: (a) The distinctions between an accomplice and a conspirator are: 1, An accomplice incurs criminal liability by merely cooperating in the exécution of the crime without participating as a principal, by prior or simultaneous acts; whereas a conspirator participates in the commission ofa crime as a co-principal. 2. An accomplice incurs criminal liability in an individual capacity by his act alone of cooperating in the execution of the crime; while a conspirator incurs criminal liability not only for his individual acts in the execution of the crime but also for the acts of the other participants in the commission of the crime collectively. The acts of the other participants in the execution of the crime are considered also as acts of a conspirator fur purposes of collective criminal responsibility. 3. Anaccomplice participates in the'execution ofa crime when the criminal design or plan is already in place; whereas a conspirator participates in the adoption or making of the criminal design. 4. Anaccomplice is subjected toa penalty one degree lower than that of a principal; whereas a conspirator incurs the penalty of a principal. 67(b) What are the three (3) classes « crime of qualified seduction? each, of offenders in the Give an example of SUGGESTED ANSWER: {b) The three (3) classes of offenders in the er qualified seduction are: mene 1. Those who exercise moral in cise moral influence over the victim, such as a Tes spiritual adviser of the victing wo in the school where the vietina cannes A brother or ascendant by it he Y consanguinity o the victim, such as her uncle; am uty Of 3. Those who are re; “ i are regarded a: \estie” i relation to the victim, carne i ALTERNATIVE ANSWER: The three (3) classes of offenders ii qualified seduction are: ers in the erime of 1. Those who abuse their authori 1 eir authority. Examples: Petsonin publicauthority, guardian, ene: & Person who, inany capacity, is entrusted with the education or custody ofthe woman seduced, 2. Those who abuse the cont them. Examples: domestics. onfidence reposed on Priest, house servant, 3. Those who abuse their relationshi; e thei ionship. Examples: ‘abrotherwho seduced his sister; ascendant why 68 seduced his descendant. (Article 337, Revised Penal Code) vr (10%) What are the different acts of inciting to sedition? 'UGGESTED ANSWE] The different acts which constitute the crime of inciting to sedition are: 1. Inciting others through speeches, writings, banners and other media of representation to commit acts which constitute sedition; 2. Uttering seditious words, speeches or circulating scurrilous libels against the Government of the Philippines or any of its duly constituted authorities, which tend to disturb or obstruct the performance of official functions, or which tend to incite others to cabal and meet for unlawful purposes; 3. Inciting through the same media of representation rebellious conspiracies or riots; 4. Stirring people to go against lawful authorities, or disturb the peace and public order of the community or of the Government; or 5. Knowingly concealing any of the aforestated evil practices (Art. 142, Rev. Penal Code). vir (10%) Eddie brought his son Randy to a local faithhealer known as “Mother Hinata.” He was diagnosed by the faithhealer as being possessed by an evil spirit. Eddie thereupon authorized the conduct ofa“treatment” calculated 69to drive the “spirit” from the boy's bedy. Unfortunately, the procedure conducted resulted in the boy's death. ‘The faithhealer and three others who were part of the healing ritual were charged with murder and convicted by the lower court. If you were the appellate court Justice, would you sustain the conviction upon appeal? Explain your answer. SUGGESTED ANSWER: No, the conviction for murder should not be sustained, because there is no indication that the accused acted with intent to kill Randy. On the contrary, the facts show that the accused acted to “treat” the victim in a way of driving the evil spirit which was believed to have “possessed” him. Considering that proximate cause of the victim’s death was the healing ritual done by the accused which is not recognized in law as legitimate, the accused are criminally liable for the victim's death. As they may have overdone the “healing ritual” they conducted on the victim’s body, causing the latter's death, although the intent to kill was absent, the accused may be held criminally liable for Reckless Imprudence Resulting in Homicide. ALTERNATIVE ANSWER: No, because none of the circumstances qualifying the killing to murder in Art. 248 attended the crime. ‘The faithhealer and his co-accused should only be liable for homicide, because they are not authorized by law to practice medicine and were therefore acting illegally although the wrongful act done was different from what they intended. vat (10%) Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill 70 was earning less than it actually was by writing in a “tala” or ledger a figure lower than what was collected and paid by their customers. Fe then pocketed the diffe What crime/s did Fe commit. if any? Explain your answer ‘SUGGESTED ANSW1 If the “tataan” or ledger which Fe made to-show a falsehood wasa private document, the only crime that Fe committed was estafa thru abuse of confidence or unfaithfulness. Criminal liability for falsification of a private document does not arise without damage or at least proof of intent to cause damage. It cannot co-exist with the crime of estafa which also essentially requires damage or at least proof of intent to cause damage. Since the “talaan” was falsified to cover-up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage attends the falsification, it will be the same damage or intent to cause damage that will attend the estafa. If such “talaan” or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone if done with intent to pervert the truth, would bring about criminal liability for faisification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed; namely, estafa and falsification of the commercial document. The falsification should not be complexed with the estafa since it was not committed as a necessary means to commit the estafa but rather resorted to, to conceal or hide the misappropriation of the amount she pocketed. ALTERNATIVE ANSWER: ‘The crimes committed by Fe are theft and falsification of private document because Fe’s possession of the proceeds of the rice mill was only physical, not juridical, mpossession, and having committed the crimes with grave abuse of confidence, it is qualified theft. The falsification is a separate crime from the theft because it was not committed as a necessary means to commit the theft but resorted to only to hide or conceal the unlawful taking. Ix (10%) During a concert of Gary V., and in order to prevent the crowd from rushing to the stage, Rafael Padilla (a security guard) pointed his gun at the onrush of people. When the crowd still pushed forward, Rafael! fired his gun into the air to scare them off. However, the bullet hit one of the metal roof supports, ricocheted and then hit one of the stage crew members, causing injuries which resulted in the latter's confinement in a hospital for twelve days. What crime/sdid Rafael commit? Explain your answer SUGGESTED ANSWER: The crime committed by Rafael is Simple Negligence Resulting in Less Serious Physical Injuries. Rafael is a security guard and was on duty when he discharged the firearm. The discharge of the firearm was not calculated to cause alarm or danger but simply toward off the unruly crowd which persisted in pushing forward, thereby challenging the duty he was to fulfill there. The discharge of the firearm, therefore, should neither constitute a crime of Alarms and Scandal under Art. 155 of the Revised Penal Code nor may such discharge amount toa crime of Illegal Discharge of Firearms under Art. 254 of the Code since it was not directed towards a particular person when the firearm was discharged. However, the physical injuries resulting from the discharge of the firearm betrays a lack of precaution ina situation where the danger to the discharge of the firearm is not clearly manifest, thus considered as simple 72 imprudence only. The crime committed is Simple Imprudence Resulting In Less Serious Physicai Injuries, since the physical injuries required only twelve (12) days of medical attention. LTER] IVE ANSWER: The crime is reckless imprudence resulting in less serious physical injuries, because the discharge of the firearm was not necessary under the circumstances and therefore, Rafael should be aware of the possibility of injuries that could result from such discharge of the firearm, x (10%) Pinky wasa lessee ofa market stall owned by Giovanni. When Pinky refused to pay her rental, Giovanni nailed some wooden barricades on one of the sides of the market stall and posted thiswarning: “We have closed this portion of the door Do not oper: it or else something may happen to you What crime/s did Giovanni commit, if any? Explain your answer? SUGGESTED ANSWE ‘The crime committed by Giovanni is light coercion under Art. 287 of the Rev. Penal Code, commonly referred to as unjust vexation. Although what was done by Giovanni could reasonably be assumed as a retaliation to the lessee’s refusal to pay rent, absent any clear violence in the premises, such would not bring about a case of grave coercion. The situation should be interpreted liberally in favor of the offender. The rule of pro reo precludes any finding for grave coercion, because it would be against the offender. ‘The written warning which states “or else something may happen to you” is so equivocal that it may not be 73ae interpreted as felonious. A crime is never presumed; it is the contrary that is presumed. ALTERNATIVE ANSWER: ‘The crime committed by Giovanni is grave coercion because barricading one of the sides of the market stall was an act of violence deliberately done. It is not only an act of unjust vexation or light coercion but of grave 74 2006 BAR EXAMINATION 1 Motive isessential in the determination ofthe commission of a crime and the liabilities of the perpetrators. What.are the instances where proof of motive is not essential or required to justify conviction of an accused? Give at least 3 instances. 5% SUGGESTED ANSWER: Proof of motive is not required - a) Where the offender is positively identified or b) has admitted the commission of the crime (People v. Yurong, 133 SCRA 26 [1984] citing People v. Realon, et, al., 94 SCRA 422 [1980]}; ©) Where the crime committed is a malum prohibitum; or 4) Where the crime is the product of culpa or criminal negligence. 0 1. When can a Filipino citizen residing in this country use an alias legally? Give 3 instances. 2.5% 2. Under what situations may a private person enter any dwelling, residence, or other establishments without being liable for trespass to dwelling? 2.5% SUGGESTED ANSWER: Yes, an alias may be legally used — 75a) as a pseudonym in cinema and otherentertainment field; b) as apen name in ‘erary composition or work; ¢) as a pseudonym in televisicn and radio broadcasting (Ursua v. CA, 256 SCRA 147 [1986]; RA 6085, Secs. 1 & 2; SUGGESTED ANSWER: 2. Aprivate person may enter adwelling, residence, or other establishment without being liable for trespass to dwelling in the following situations: a) where a person so enters to avoid some serious harm to himself; or b) _ he did so to save or help an occupant thereof or some other person from serious harm: ¢) where a person so enters to render service to ‘humanity or to the cause of justice; and d) where a person enters establishments which cater to public service while still open for such patronage (RPC, Art. 280 last par.) ¢) if a public officer or person authorized is conducting a valid arrest or valid search and seizure (Rules on Criminal Procedure, Rule 113), mt 1. What are the 3 ways of committing arbitrary detention? Explain each. 2.5% 2. What are the legal grounds for detention? 2.5% 3. When is an arrest by a peace officer or by a private person considered lawful? Explain. 5% 76 SUGGESTED ANSWER: 1, Three (3) ways ofcommitting arbitrary detention a) by detaining or locking up a person without any legal cause or ground therefor purposely to restrain his liberty (RPC, Art. 124); b) by delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant (RPC, Art. 125); and ©) _ by delaying release of a prisoner whose release hasbeen ordered by competent authority (RPC, Art. 126). In all the above-stated ways, the principal offender should be a public officer acting under color of his authority. SUGGESTED ANSWER: 2. The legal grounds for detention a: a) commission of a crime; b) violent insanity or other ailment requiring compulsory confinement in an institution established for such purpose. SUGGESTED ANSWER: Arrest by a peace officer or by a private person is lawful - a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) when an offense has just been committed and hhe has probable cause to believe based on personal 7| re knowledge of facts or circumstances that the person to be arrested has committed it; and ¢) when the person tobe arrested isa prisoner who ‘has escaped from penal establishment or place where he is serving sentence or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Rules on Criminal Procedure, Rule 113, Sec. 5). Iv 1. Enumerate the differences between pardon and amnesty. 2.5% 2. Under Presidential Proclamation No. 724, amending Presidential Proclamation No. 347, certain crimes are covered by the grant of amnesty. Name at least 5 of these crimes. 2.5% 3. Can former DSWD Secretary Dinky Soliman apply for amnesty? How about columnist Randy David? (You are supposed to know the crimes or offenses ascribed to them as published in almost all newspapers for the past several months.) 2.5% 4. General Lim and General Querubin of the Scout Rangers and Philippine Marines, respectively, were charged with conduct unbecoming an officer and a gentleman under the Articles of War. Can they apply for amnesty? 2.5% SUGGESTED ANSWER: The differences between pardon and amnesty are ~ In pardon: ‘The convict is excused from serving the sentence but the effects of conviction remain unless expressly remitted by the pardon; hence, for pardon to be valid there must be a sentence already final and executory at the time the same is granted. Moreover, the grant is in 78 favor of individual convicted offenders, not to a class of convicted offenders: and the crimes subject of the grant may be common crimes or political crimes. Finally, the grant is a private act of the Chief Executive which does not require the concurrence of any other public officer or office. In amnesty: ‘The criminal complexion of the act constituting the crime is erased, as though such act was innocent when committed; hence, the effects of the conviction are obliterated. Amnesty is granted is in favor of a class of convicted offenders, not to individual convicted offenders: and the crimes involved are generally political offenses, not common crimes. Ammesty is a public act that requires the conformity or concurrence of the Philippine Senate. 2. Crimes covered by the grant of amnesty under Presidential Proclamation No. 724: (at least 5) a, Rebellion or insurrection b. Coup d'etat ©. Conspiracy and proposal to commit rebellion, insurrection or coup d'etat 4. Disloyalty of public officers or employs e. Inciting to rebellion or insurrection f£. Sedition Conspiracy to commit sedition h. Inciting to sedition i, legal assembly J. Mlegal association 79k. Direct Assault 1. Indirect Assault m, Resistance and disobedience to a person in authority or agents of such persons n. Tumults and other disturbances of public order ©. Unlawful use of means of publication and unlawful utterances Alarms and scandals 4. Mlegal possession of firearms, ammunitions, and explosives, committed in furtherance of, incident to. or in connection with the crimes of rebellion and insurrection x. Violations of Articles of War: 1.1, Art. 89 (Desertion) 12. Art. 62 (Absence without Leave) 13. Art. 67 (Mutiny or Sedition) 1.4. Art. 68 (Failure to Suppress Mutiny or Sedition) 1.5, Art. 94 (Various Crimes) 1.6, Art, 96 (Conduct unbecoming an officer and gentleman) 1.7. Art. 97 (General Article) ANOTHER SUGGESTED ANSWER: Crimes covered by the grant of amnesty are: (at least 5) legal assembly; Alarms and scandal; legal association; Disloyalty by public officers/employees; Iilegal possession of firearms. 80 SUGGESTED ANSWER: 3. Both Dinky Soliman and Randy David may apply for amnesty because the crime respectively imputed to them are crimes against public order which are among the crimes covered by amnesty. SUGESTED ANSWER Yes. General Lim and General Querubin of the Scout Rangers and Philippine Marines can apply for amnesty. Violation of conduct unbecoming an officer and a gentleman under Article 96 of the Articles of War is explicitly enumerated in Section 1 of Presidential Proclamation No. 724 as one of the crimes that are covered by the grant of amnesty. v ‘There are at least 7 instances or situations in criminal cases wherein the accused, either as an adult or as a minor, can apply for and/or be granted a suspended sentence, Enumerate at least 5 of them. 5% SUGGESTED ANSWER: Instances when sentence may be Suspended are: (at least 7 instances) a) where the accused became insane before sentence could be promulgated (Art. 79, RPC): b) where the offender, upon conviction by the trial court, filed an application for probation which has been granted (Baclayon v. Mutia, 129 SCRA 148 [1984D; c) where the offender needs to be confined in a rehabilitation center because of drug-dependency although convicted of the crime charged 81ad) where the offender is a youthful offender under Art. 192, PD 603, otherwise referred to as the Child and Youth Welfare Code: and . ¢) where the crime was committed when the offender is under 18 years of age and he is found guilty thereof in accordance with Rep. Act 9344, otherwise known as the “Juvenile Justice and Welfare Act of 2006", but the trial court subjects him to appropriate disposition measures as prescribed by the Supreme Court in the Rule on Juveniles in Conflict with the Law. f) the death sentence shall be suspended upon a woman while she is pregnant or within one year after delivery. (Art. 83, Revised Penal Code) @ Section 66 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) SECTION 66. Suspension of Sentence of a First- Time Minor Offender. - An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: (a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code: or of any special penal laws; () He/she has not been previously committed toa Center or to the care of a DOH-accredited physician; and (©) The Board favorably recommends that his/her sentence be suspended. xxx” “SECTION 66. Suspension of Sentence of a First- ‘Time Minor Offender. - An accused 82 h) When the sentence is death, its execution may be suspended or postponed by the Supreme Court, through the issuance of a RO upon the ground of supervening events (Echegaray v. Secretary of Justice, 301 SCRA 96 lgggp. VI 1. In 1982, the Philippine National Bank (PNB), then a government banking institution, hired Henry dela Renta, a CPA, as Regional Bank Auditor. In 1992, he resigned and was employed by the Philippine Deposit Insurance Corporation (PDIC), another government-owned and controlled corporation. In 1995, after the PNB management unearthed many irregularities and violations of the bank's rules and regulations, dela Renta was found to have manipulated certain accounts involving trust funds and time deposits of depositors. After investigation. he was charged with malversation of public funds before the Sandiganbayan. He filed a motion to dismiss contending he was no longer an employee of the PNB but of the PDIC. Is dela Renta’s contention tenable? 2.5% 2. Afterhisarraignment, the prosecution filed a motion for his suspension pendente lite, towhich he filed an opposition claiming that he can no longer be suspended as he is no longer an employee of the PNB but that of the PDIC. Explain whether he may or may not be suspended. 2.5% SUGGESTED ANSWER: 1. No, dela Renta’s contention is not tenable for these reasons: a) His contention that he i no longer an employee of PNE but of PDIC as no merit since both PNB and PDIC are government institutions and the funds thereof belong to the same Government who suffers from the malversation; (Sec. 4, PD 1606, as amended). 83b) Resignation or separation from office is not a ground for extinguishing criminal liability under Art. 89 of the Revised Penal Code, for any crime committed while the offender was connected with the office: and ©)__ The crime of malversation was discovered only in 1995 and so, the prescriptive period of the crime only commenced to run from then. Obviously, the amount misappropriated exceeds P200.00 and so the prescribed penalty is within the range of prision mayor already. Crimes punishable by prision mayor prescribes in 15 years. From 1995 to the present is only around 11 years. Hence the crime can still be prosecuted. SUGGESTED ANSWER: 2. The accused may be validly suspended from office in PDIC because PDIC is a government-owned and controlled corporation; hence a public office. When the Information charges the accused with acts of fraud involving Government funds, the suspension of the accused pendente lite assumes a mandatory character and the court may order the suspension of the accused regardless of whether the prosecution files a motion for the preventive suspension of the accused, or the motion is filed by the counsel of the government agency concerned, with or without the conformity of the public prosecutor (Robles et al., v. Layosa et al., 436 SCRA 337 12 Aug 04). vu 1. While SS Nagoya Maru was negotiating the sea route from Hongkong towards Manila, and while still 300 miles from Aparri, Cagayan, its engine malfunctioned, The Captain ordered the ship to stop for emergency repairs lasting for almost 15 hours. Due to exhaustion, the officers and crew fell asleep. While the ship was anchored, a motorboat manned by renegade Ybanags from Claveria, Cagayan, passed by and took advantage of the situation, They cut the ship's engines and took away several heavy crates of electrical equipment and loaded them in their 84 motorboat. Then they left hurriedly towards Aparri, At daybreak, the crew found that a robbery took place. They radioed the Aparri Port Authorities resulting in the apprehension of the culprits. What crime was committed? Explain. 2.5% 2. Supposing that while the robbery was takingplace, the culprits stabbed a member of the crew while sleeping. ‘What crime was committed? Explain. 2.5% SUGGESTED ANSWER: 1, The crime committed was piracy under Art. 122, Revised Penal Code, the essence of which is robbery directed against a vessel and/or its cargoes. The taking of the several heavy crates of electrical equipment from a vessel at sea, was effected by force and undoubtedly with intent to gain. It is ofno moment that the vessel was anchored when depredated so long as it was at sea. SUGGESTED ANSWER: 2. Thecrime was qualified piracy under Art. 1230f the Revised Penal Code because it was attended by a killing committed by the same culprits against a member of the crew of the vessel. vit Commissioner Marian Torres of the Bureau of Internal Revenue (BIR) wrote solicitation letters addressed to the Filipino-Chinese Chamber of Commerce and Industry and to certain CEOs ofvarious multinational corporations requesting donations of gifts for her office Christmas party. She used the Bureau's official stationery. The response was prompt and overwhelming so much so that Commissioner Torres’ office was overcrowded with rice cookers, radio sets, freezers, electric stoves and toasters. Her staff also received several envelopes containing cash money forthe employees’ Christmas luncheon. 85ssioner Torres committed any iinpropriety or irregularity? What laws or decrees did she violate? 5% SUGGESTED ANSWER: Yes, Commissioner Torres committed an impropriety. She violated Sec. 7(d) of Rep. Act 6713 otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and Employees". Sec. ‘7(d) mandates that public officials and employees shall not solicit or accept directly or indirectly any gift, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or any transaction which may be affected by the functions of their office. ANOTHER SUGGESTED ANSWER: The solicitation for her office Christmas Party violates Pres. Decree 46 which makes it punishable for any public official or employee to receive, directly or indirectly, any gift, present or other valuable thing on any occasion, including Christmas when such gift or present is given by reason of her official position. ANOTHER SUGGESTED ANSWER: ‘Yes, Commissioner Torres committed an impropriety and violated Art. 211 of the Revised Penal Code on indirect bribery. She accepted gifts by reason of her office. x Eduardo Quintos, a widower for the past 10 years, felt, that his retirement at the age of 70 gave him the opportunity to engage in his favorite pastime - voyeurism. Ifnot using his high-powered binoculars to peep at his neighbor's homes and domestic activities, his second choice was to follow sweet young girls. One day, he trailed a teenage girl up to the LRT station at EDSA-Buendia. While ascending the stairs, he stayed one step behind her and in a moment of bravado, placed his hand on her left hip and gently massaged it. She screamed and shouted for help. Eduardo was arrested and charged with acts of lasciviousness. Is the designation of the crime correct? 5% SUGGESTED ANSWER: No, the designation of the crime charged is not correct because the overt act committed by Eduardo still falls short of the crime of acts of iasciviousness. The nature of the act done does not manifest sexual desire. It is more appropriate to consider such overt act as mere annoyance or vexation, constituting a crime of light coercion, commonly referred to as unjust vexation. The Revised Penal Code favors a milder criminal responsibility. ANOTHER SUGGESTED ANSWER: Considering Eduardo’s voyeurism and propensity forlewdness, he may be charged for acts of lasciviousness as his criminal intent in doing the act is characterized by lewd desire. ANOTHER SUGGESTED ANSWER: No. The designation of the crime of acts of lasciviousness is not correct. The crime committed is Unjust Vexation. Unjust vexation includes any human conduct which, although not productive of some physical or material harm. unjustly annoys, irritate, vex, torment or distress the mind of an innocent person. Eduardo has indeed committed the crime of unjust vexation when he placed his hand on the hip of a teenage girl and gently massaged it. x Jaime, Andy and Jimmy, laborers in the noodles in the noodles factory of Luke Tan, agreed to kill him due to his arrogance and miserliness. One afternoon, they seized him and loaded him in a taxi driven by Mario. They told Mario 87they will only teach Luke a lesson in Christian humility, Mario drove them to.a fishpond in Navotas where Luke was entrusted to Emil and Louie, the fishpond caretakers, asking them to hide Luke in their shack because he was running from the NBI. The trio then left in Mario's car for Mai where they called up Luke’s family and threatened them to kill Luke unless they givea ransom within 24 hours. Unknown to them, because of a leak, the kidnapping was announced over the radio and TV. Emil and Loufe heard the broadcast and panicked, especially when the announcer stated that there is a shoot-to-kill order for the kidnappers. Emil and Louie took Luke to the seashore of Dagat-dagatan where they smashed his head with a shovel and buried him in the sand However, they were scen by a barangay kagawad who arrested them and brought them to the police station. Upon interrogation they confessed and pointed to Jaime, Andy, Jimmy and Mario as those responsible for the kidnapping Later, the 4 were arrested and charged. What crime or crimes did the 6 suspects commit? 5% SUGGESTED ANSWER: ‘The six(6) suspects committed the following crimes: Jaime, Andy and Jimmy committed the crime of kidnapping for ransom having seized Luke and causing his detention by Emil and Louie in the latter's place. Although the agreement among Jaime, Andy and Jimmy was to kill Luke, the agreement appears to have been abandoned when they left Luke to Emil and Louie to be kept and detained by the latter, while they called up Luke's family and demanded ransom. Mario, the taxi driver, only cooperated as an accomplice by taking Luke to the fishpond after having learned of the unlawful purpose disclosed to him by Jaime, Andy and Jimmy. There was no indication, however, that Mario knew of the demand for ransom. Hence, he may only be held liable as an accomplice to the crime of slight illegal detention under Art. 268 of the Code. 88 Emil and Louie should be liable for serious illegal detention with homicide (Art. 267 last par., RPC) since the detention was attended by a killing. Their crime would have been slight illegal detention only under Art. 268 of the Code were it not for the killing of the victim. ANOTHER SUGGESTED ANSWER: Jaime, Andy and Jimmy committed the special complex crime of kidnapping for ransom with homicide because their purpose was to kill Luke when they seized Mario, the taxi driver, does not incur criminal liability for the acts of Jaime, Andy and Jimmy because he had no participation therein. Emil and Louie should be liable only for murder for killing Luke in a defenseless position, but not for keeping Luke since it was not their intention to detain him. XxI Ana has been a bar girl/GRO at a beer house for more than 2years. She fell in love with Oniok, the bartender, who impregnated her. But Ana did not inform him about her ion and. instead, went to Cebu to conceal her shame However, her parents drove her away. So, she returned, to Manila and stayed with Oniok in his boarding house. Upon learning of her pregnancy, already in an advanced state, Oniok tried to persuade her to undergo an abortion, but she refused. Because of their constant and bitter quarrels, she suffered birth pangs and gave birth prematurely toa live baby girl while Oniok was at his place of work. Upon coming home and learning what happened, he prevailed upon Ana to conceal her dishonor. Hence. they placed the infantina shoe box and threw it into a nearby creek. However. an inquisitive neighbor saw them and with the help of others, retrieved the infant who was already dead from drowning. The incident ‘was reported to the police who arrested Ana and Oniok. The 2 were charged with parricide uncer Article 246 of the 89Revised Penal Code. After trial, they were convicted of the crime charged. Wa the conviction correct? 5% SUGGESTED ANSWER: The conviction was incorrect because: a) Under Art. 46, Civil Code, a newborn with an intra uterine life of less than 7 months must live for at least 24 hours before it may be considered born and hence, before it may acquire personality of its own: b) ‘The new born, therefore was still a foetus when killed and was not yet a person. Hence, the crime in law is abortion. It is legally a foetus who was kilied, not a person/child because legally it has no personality yet; ©) _ Infanticide and parricide involvesa killing where the victim is already a person. ANOTHER SUGGESTED ANSWER: ‘The conviction for parricide was correct ifthe infant was already three (3) days old or more when killed because Ana and Oniok are the parents of the child. But if the child was less than 3 days old when killed, the crime of both Ana and Oniok is infanticide and they should be convicted for infanticide, not parricide. x Judge Red Reyes was appointed by Former President Fidel Ramos as Deputy Ombudsman for the Visayas for a term of 7 years commencing on July 5, 1995. Six months thereafter, a lady stenographer. filed with the Office of the Ombudsman a complaint for acts of lasciviousness and with the Supreme Court a petition for disbarment against him. Forthwith, he filed separate motions to dismiss the complaint for acts of asciviousness and petition for disbarment, claiming lack of jurisdiction over his person and office. 90 Are both motions meritorious? 5% SUGGESTED ANSWER: No, the motions filed by Judge Reyes are both without merit, Being only a Deputy Ombudsman, he is not included among the government officials who may be removed only by impeachment from office under the Constitution (Office of the Ombudsman v. Court of Appeals, 452 SCRA 715 [2005)). Hence, he may be charged criminally and administratively for the acts of lasciviousness complained of before the Office of the Ombudsman, and for disbarment in a petition with the Supreme Court. xu Dang was a beauty queen in a university. Job, a rich classmate, was so enamored with her that he persistently wooed and pursued her. Dang, being in love with another man, rejected him. This angered Job. Sometime in September 2003, while Dang and her sister Lyn were on their way home, Job and his minor friend Nonoy grabbed them and pushed them insideawhitevan. They brought them in an abandoned warehouse where they forced them to dance naked. Thereafter, they brought them toa hill in a nearby barangay where they took turns raping them, After satisfying their lust, Job ordered Nonoy to push Dang down a ravine, resulting in her death: Lyn ran away but Job and Nonoy chased her and pushed her inside the van. Then the duo drove away. Lyn was never seen again. 1. What crime or crimes were committed by Job and Nonoy? 2.5% 2. Whatpenaities should be imposed on them? 2.5.% Will Nonoy's minority exculpate him? 2.5% 4. _ Is the non-recovery of Lyn’s body material to the criminal liability of Job and Nonoy? 2.5.% 91SUGGESTED ANSWER: 1, Job and Nonoy each committed two (2) counts of the special complex crime of rape with homicide under Art. 266-B for the rapes respectively committed on Dang and on Lyn. Their felonious acts of grabbing and pushing the victims inside their van and later forcing them to dance naked may only be appreciated as part of the violence and lewd desires attending the rape, and are therefore absorbed by the rape. Although, there is no indication that the same culprits killed Lyn who was never seen again, it is reasonable to assume from what the culprits did to Dang, and from the acts of violence they employed on Lyn, that they are answerable also for the presumed death of Lyn whom the culprits took with them by force and was never seen again. Hence, the rape committed against her is attended by homicide giving rise to the special complex crime of rape with homicide also. It would be different if Lyn was not subjected to physical violence. (R.A. 7659) SUGGESTED ANSWER: 2. Because of obvious conspiracy, each of the culprits should be punished not only for the rape he committed but also for the rape committed by the other: hence, for as many counts of rape committed by him plus those committed by the other culprit against each of the victims. Although the penalty for the crime of rape with homicide was death at the time the accused committed them, and the law (Rep. Act No. 9346) prohibiting the imposition of the death penalty took effect only this year (2006), said new law should be given retroactive effect because it is favorable to the culprits who are not habitual delinquents and there being no provision of law to the contrary. Hence, reclusion perpetua for each count of rape with homicide. The accessory penalty under Art. 40 of the Revised Penal Code will not follow because RA 9346, Sec. 2 does not so provide: it is the accessory 92 penalty for reclusion perpetua that shall now adhere to the principal penalty. SUGGESTED ANSWER: 3. _Nonoy's minority will exculpate him under Rep. Act 9344, referred to as the “Juvenile Justice and Welfare Act of 2006", if he was 15 years old or less: otherwise he will be criminally and civilly liable considering that he acted with discernment when he also raped the victims. At most, his minority will be appreciated as privileged mitigating circumstance. 4. No. The corpus delicti or fact of commission of the crime is clear. Even the death of Lyn may be established from the acts of the culprits, without the need of the body of Lyn being presented. xIV Ina crime of homicide, the prosecution failed to present any receipt to substantiate the heirs’ claim for an award of actual damages, such as expenses for the wake and burial What kind of damages mnay the trial court award to them and how much? 5% SUGGESTED ANSWER: ‘The damages that the trial court may award are: a) _ civil indemnity for the loss of life of the victim which jurisprudence has set at PS0,000.00; b) _Moderate/temperate damages for the expenses incurred for the wake and burial of the victim as the trial court may consider reasonable; and ©) Moral damages for the sufferings of the family of the victim emotionally and mentally. 93xv 1 Forest Ranger Jay Velasco was patrollingthe Balara Watershed and Reservoir when he noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and after a few minutes, he saw Rene and Dante coming out of the gate with some more newly-cut logs. He apprehended and charged them with the proper offense. What is that offense? Explain. 2.5% 2, During the preliminary investigation and up to the trial proper, Rene and Dante coritended that if they were to be held liable, their liability should be limited only to the newly-cut logs found in their possession but not to those found outsiue the gate. Ifyou were the judge, what will be your ruling? 2.5% SUGGESTED ANSWER: 1. The offense committed is qualified theft, pursuant to Sec 1 of Pres. Decree No. 330, and Sec. 68 of Pres. Decree No. 705 defining the offense committed by any person who directly or indirectly cuts, gathers, removes or smuggles timber or other forest products in violation of existing laws, rules and regulations, from any public forest reserves, and other kinds of public forest or even privately owned forest lands. SUGGESTED ANSWER: 2. IfIwere the judge and the evidence adduced by the prosecution convincingly show a clear link between the accused and the cut logs piled outside the gate of the watershed, I will hold the accused criminally Hable not only for the newly cut logs in their possession but also for those found outside the gate. Circumstantial evidence proving that the accused and no other persons could have done the cutting of the logs, such as the manner of cutting the logs, the area where they cut the logs they 94 were carrying, and other indications pointing to them as. the culprits may be considered. ANOTHER SUGGESTED ANSWER: 2. _IfTwere the judge I will rule in favor of Rene and Dante. The liability of Rene and Dante is limited only to the newly cut logs found in their possession unless convincingly proved that were the ones who brought out the logs found outside the gate. It is fundamental rule in this jurisdiction that the guilt of the accused must be proven beyond reasonable doubt in order to be convicted for the crime charged. ‘The facts of the case at bar does not show that Rene and Dante were the ones who took and brought out the logs found outside the gate. Culpability not having been sufficiently proved, they should not be held liable. XVI After receiving a reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his attaché case. Upon inspection inside the Immigration holding area, the attaché case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attaché case and boarded him in an unmarked car driven by P03 Pepito Lorbes. Oni the way to Camp Crame and upon nearing White Plains corner Edsa. Chief Inspector Gamboa ordered PO3 Lorbes to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left withthe 2 remaining plastic sacks ofheroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBIteam of agents had been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and POS Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later charged. 95What are their respective criminal liabilities? 5% SUGGESTED ANSWER: Chief Inspector Samuel Gamboa and PO3 Pepito Lorbes incur criminal liability under Art. 11, Sec. 4 last par., R.A. No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002". They acted as “protector/coddler” to the unlawful bringing into the Philippines of the dangerous drugs. A“protector/ coddler” refers to any person who uses his power or position in, inter alia, facilitating the escape of any person whom he knows or believes, has violated the Dangerous Drugs Law, in order to prevent the arrest, prosecution and conviction of the violator. ‘The two police officers are criminally liable for violation of Sec. 27, R.A. 91165 of the same law for misappropriation and failure to account for the confiscated or seized dangerous drugs On the other hand, Dante Ong is criminally able for the illegal importation or bringing into the Philippines of the dangerous drugs. {Article 11, Sec. 4, RA 9165. xv ‘Aling Maria received an urgent telephone call from Junior, her eldest son, asking for P2,000.00 to complete his semestral tuition fees preparatory to his final exams in Commerce. Distressed and disturbed, she borrowed money from her compadre Mang Juan with the assurance to pay him within 2 months. Two months lapsed but Aling Maria failed tosettle her obligation. Mang Juan told Aling Maria that she does not have to pay the loan if she will allow her youngest 10-year old daughter Annie to work as a housematd in his house for 2 months at P1,000.00 a month. Despite Aling Maria's objection, Mang Juan insisted and brought Annie to his house to work as a maid. 1. Was a crime committed by Mang Juan when he brought Annie to his house as maid for the purpose of repaying her mother’s loan? 2.5% 2. If Aling Maria herself was made to work as a housemaid in Mang Juan's household to pay her loan, did he commit a crime? 2.5% SUGGESTED ANSWER: 1. Yes, Mang Juan ‘violated of Rep. Act No. 7610 on child abuse and exploitation, as amended by Rep. Act 7658 prohibiting employment of children below 15 years of age, in relation to the crime of Exploitation of Child Labor under Art. 273, Revised Penal Code. Annie is only 10 years old and under the pretext of reimbursing himself ofa debt owed by Annie's mother, Mang Juan took Annie to his house to work as a maid despite her mother's objection. Annie could not have given consent to the exploitation since she was only ten (10) year's old and thus could not give any valid consent. 2. If it was against her will that Aling Maria was made to work as a housemaid in Mang Juan's household to pay her debt to him, the latter would be committing a crime under Art. 274 of the Revised Penal Code, which punishes any person who shall compel a debtor to work for him as a household servant against her will just to enforce payment of a debt. 972005 BAR EXAMINATION I (1) Distinguish the following from each other: a) Complexcrime unaer Article 48 of the Revised Penal Code; b) Special complex crime; and ©) Delito continuado. (3%) SUGGESTED ANSWER: (2) a) _Inacomplex crime, the component crimes are defined and penalized under separate and distinct Articles of the Revised Penal Code but are allowed to be alleged in one Information as an exception to Sec. 13, Rule 110 of the Rules of Criminal Procedure, because they are committed under the circumstances providedin Article 48 of same Code, i.e., two or more grave or less grave felonies resulted from a single act, or one offense was a necessary means for committing the other offens. b) _In a special complex crime, also known as composite crime, the component crimes constitute a single indivisible offense and are thus penalized as one crime under one Article of the Revised Penal Code, such ‘as robbery with homicide under Art. 294 of the Code. ©) _Delitocontinuado, also known as continued crime, is constituted by a series of overt acts committed by the offender in one place a penal law, and therefore regarded as impelled by a single, indivisible criminal resolution; hence, punished as one crime only. (2) Under Article 27 of the Revised Penal Code, as amended by Republic Act (RA) No. 7659, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does thismean that reclusion perpetua ts now a divisible penalty? Explain. (2%) 98 | HUGGESTED ANSWER: (2) No, reclusion perpetua is still an indivisible penalty although it has been given a fixed duration by R.A. No, 7659 (an act to impose the Death Penalty on certain Heinous crimes). In an en banc ruling of the Gupreme Court in People v. Conrado Lucas 240 SCRA 66 (1995), it was held that reclusion perpetua has remained an indivisible penalty as there is no clear legislative Intention to make the penalty divisible. (3) Distinguish pecuniary penalties from pecuniary Nabilities, (2%) SUGGESTED ANSWER: (3) Pecuniary penalties are those which aconvicted offender may be required to pay in money to the Government. These are: 1. fine; and 2. costs of the proceedings. Pecuniary liabilities, on the other hand, are those which a convicted offender is required to pay in money to the offended party and to the Government. They are: 1, reparation of the damage caused; 2: indemnification of consequential damages; 3. fine: and 4. costs of the proceedings (Art. 38, RPC) ‘The first two liabilities (nos. 1 and 2) are payable as civil indemnity to the private parties offended by the crime; while the last two (nos. 3 and 4) are payable to the Government. (4) Taking into account the nature and elements ofthe felonies of coup d'etat and rape, may one be criminally lable for frustrated coup d'etat or frustrated rape? Explain. (2%) 99SUGGESTED ANSWER: (4) No, aperson may not be held liable for frustrated coup d'etat or for frustrated rape because in a frustrated felony, it is required that all acts of execution that could Produce the felony as a consequence must have been performed by the offender but the felony was not produced ‘by reason of causes independent of the will of the offender. In the said felonies, however, one cannot perform all the acts of execution without consummating the felony. The said felonies, therefore, do not admit of the frustrated stage. (6) Distinguish malum in se from malum prohibitum. (2%) SUGGESTED ANSWER: (6) Malum in se is a crime where the act done is inherently bad, evil and wrong in nature, such that it is generally condemned. The moral traits of the offender are taken into account in punishing the crime. Malum prohibitum is a crime where the act done is not inherently bad, evil or wrong but prohibited by law for public good and welfare. Anyone who voluntarily commits the prohibited act incurs the crime. 0 () Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter, Gaston, while driving a car saw Belle crossing the street. Incensed that Belle had reported him, Gaston decided to scare her by trying to make it appear that he was about to run her over. He rewved the engine of his car and drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and hit Belle causing her death. What is the lability of Gaston? Why? (4%) 100 SUGGESTED ANSWER: (2) Gaston is criminally liable for homicide in doing the felonious act which caused Belle's death, although the penalty therefor shall be mitigated by lack of intention to commit so grave a wrongas that committed (Art. 13 (3), RPC). The act, having been deliberately done with malice, is felonious and being the proximate cause of Belle's death, brings about criminal liability although the wrong done was different from what was intended (art. 4, [1], RPC). (2) DD was engaged in the warehouse business. Sometime in November he was in dire need of money. He, thus, sold merchandise deposited in his warehouse to VR for 500,000.00. DD was charged with theft, as principal. while VR as accessory. The court convicted DD of theft but acquitted VR on the ground that he purchased the merchandise in good faith. However, the court ordered VRto return the merchandise to the owner thereof and ordered DD to refund the P500,000.00 to VR. DD moved for the reconsideration of the decision insisting that he should be acquitted of theft because being the depositary, he had juridical possession of the merchandise. ‘VRalsomoved for the reconsideration of the decision insisting that since he was acquitted of the crime charged, and that he purchased the merchandise in good faith, he is not obligated to return the merchandise to its owner. Rule on the motions with reasons. (5%) SUGGESTED ANSWER: (2) The motion forreconsideration of DDis DENIED. In this case, there being no proof that title to the goods was transferred to DD, only physical possession is presumed transferred to and obtained by DD. (U.S. v. De ‘Vera, 43 Phil. 1001 [1921). 101The principal distinction between the two crimes is that in theft the thing is taken while in estafathe accused received the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property, if he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but ifhe has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. (Santos v. People, 181 SCRA 487 [1990). The motion for reconsideration of VR is DENIED. While VR is acquitted of theft, such acquittal does not of itself negate civil liability of VR to return the property stolen by DD. Civil lability on the part of VR exists despite his acquittal, since his acquittal is premised on the finding that his liability is only civil in nature. (De Guzman v, Alva, 51 0.G. 1311 [1955]. DDwas unlawfully deprived of his personal property and as owner or possessor he may recover such movables. mm (1) Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months, as minimum, to 3 years, as maximum. State with reasons whether the court may correctly impose the following penalties: a) a straight penalty of 10 months; b) 6 months, as minimum, to 11 months, as maximum: ¢) astraight penalty of 2 years. (5%) SUGGESTED ANSWER: (1) a) The court may validly impose a straight penalty of 10 months imprisonment because the penalty prescribed by lawis imprisonment of 6 months to 3 years, and the Indeterminate Sentence Law does not apply 102 when the penalty imposed is imprisonment which does not exceed one year. b) A prison term of 6 months as minimum, to 11 months, as maximum may not be imposed by the court because the Indeterminate Sentence Law does not apply when the penalty imposed as maximum of the sentence is imprisonment which does not exceed one (1) year. Obviously the Indeterminate Sentence Law has been applied where the sentence imposed reflects a minimum and a maximum. ) The court may not validly impose a straight penalty of two years because the Indeterminate Sentence Law requires the court to set a minimum and a maximum. of the sentence where the imprisonment to be imposed already exceeds one (1) year, unless the offender is disqualified from the benefits of the said Law. SUGGESTED ALTERNATIVE ANSWER: (1.) e) Yes, the trial Court may impose a straight penalty often months. The Indeterminate Sentence Law applies to crimes punished either by the Revised Penal Code and by special laws, where the maximum period of imprisonment exceeds one year. b) No, because the Indeterminate Sentence Law cannot be applied where the maximum period of imprisonment imposed, which is eleven months, does not exceed one year. ©) No, because a straight penalty may be imposed only up to a maximum imprisonment of one (1) year. Here, it is two years. Hence, there is a need to impose an indeterminate sentence, the minimum term of which shall not be less than 6 months while the maximum term shall not exceed 3 years, (People v. Peria, 80 SCRA 589[1977). (2) Eand M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and 103Imprisonment. The judge sentenced them to pay the fine, Jointly and severally, with subsidiary imprisonment in case of insolvency. a) Is the penalty property? Explain. b) May the Judge impose an alternative penalty of fine or imprisonment? Explain. (490) SUGGESTED ANSWER: (2) a) Imposing the penalty of fine jointly and severally on the two convicted accused is not proper. The penalty should be imposed individually on every person accused of the crime. Any of the convicted accused who is insolvent and unable to pay the fine, shall serve the subsidiary imprisonment. b) The judge may not validly impose an alternative penalty. Although the law may prescribe an alternative penalty for a crime, it does not mean that the court may impose the alternative penalties at the same time. The sentence must be definite, otherwise the Judgment cannot attain finality. (3) The accused was found gullty of 10 counts of rape for having carnal knowledge with the same woman. In addition to the penalty of imprisonment, he was ordered to pay indemnity in the amount of P50,000.00 for each count. Onappeal, the accused questions the award of civil indemnity for each count, considering that the victim is the same woman. How would you rule on the contention of the accused? Explain. (3%) ‘SUGGESTED ANSWER: (3) The contention of the accused is without merit. Each count of rape is a violation of the person of the victim and thus gives rise to corresponding criminal and civil liabilities. The trial court is correct in imposing a 104 penalty for each rape and awarding corresponding civil indemnity for each count even though the victim is the same woman. Rape is not a continued crime. Wv (1). Maganda was charged with violation of Bouncing ‘Checks Law (BP 22) punishable by imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000.00, or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000.00 with subsidiary imprisonment in case of Insolvency, and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she should not change her residence without the court's prior approval. a) What is the proper period of probation? b) _ Supposingbefore the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? Explain. (5%) SUGGESTED ANSWER: (1) 8) The period of probation shall not be less than the total number of days of subsidiary imprisonment or more than twice the said number of days as computed at the rate established under the Revised Penal Code, which is one (1) day imprisonment for every P8.00 fine but not to exceed six (6) months. (PD. 968, Sec. 14{b] (establishing a Probation System) in correlation with Art. 39, RPC) b) Yes, the court may revoke the Order of Probation and order the convicted accused to serve the subsidiary imprisonment, because she violated the condition of her probation before the Order of Discharge 105was issued by the court. The conditions of probation are not co-terminous with the period of probation; such conditions continue even after the period of probation had ended and thus requires faithful compliance or fulfilment, for as long as the court which placed the convict on probation has not issued the Order of Discharge that would release her from probation. (Bala v. Martinez, 181 SCRA 459 [1990]) (2) DD purchased a television set for P50,000.00 with the use of a counterfeit credit card. The owner of the establishment had no inkling that the credit card used by DD was counterfeit. What crime or crimes did DD commit? Explain. (5%) SUGGESTED ANSWER: (2) DD committed estafa, anda violated of Rep. Act No. 8484 referred to as Access Devices Regulation Act of 1998. Estafa under Article 315 [2] (a) of the Revised Penal Code is committed because he defrauded the owner ofthe establishment by falsely pretending to possess credit with the credit card company when he used a fake credit card. DD also violated Section 9(a) of Rep. Act No. 8484 which punishes, among others, the act of using a counterfeit access device. [Note: Rep. Act No. 8484 is not included in the coverage of the 2005 Bar examinations] SUGGESTED ALTERNATIVE ANSWER: (2) DD committed a complex crime of estafa thru falsification of a commercial document. As a user of 2 false or fake credit card, a commercial document, DD is presumed to have falsified the same; Hence he does not only commit the crime of using a false document but also the crime of falsification. Since he used such false or fake 106 credit card to defraud the owner of the store from whom he purchased the television set, the crime of swindling or estafa was perpetrated thru the falsification of said commercial document. He, therefore, committed the complex crime of estafa thru falsification ofacommercial document. v Paz Masipag worked as a housemaid and yaya of the ‘one-week old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked Martin for a cash advance of P1,000.00 but Martin refused. One morning, Paz gagged the mouth of Martin's son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000.00 as ransom for the release of his son. Martin did not pay the ransom. ‘Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? Explain. (5%) SUGGESTED ANSWER: Paz committed aspecial complex crime ofkidnapping for ransom with homicide and the penalty shall be only one death penalty. ‘When any individual, in any manner, unlawfully deprives another of his liberty, the crime is designated as, kidnapping and serious illegal detention under Article 267, Revised Penal Code. The penalty shall be death where the crime was committed for the purpose of extorting ransom. It is not necessary that the ransom be obtained by the offender: it is enough that the crime of kidnapping and serious illegal detention be committed for the purpose of demanding ransom. 107Under the same Article of the Code, the death penalty is also prescribed if the victim of the kidnapping dies as a result of the detention. However, since Paz committed only one felony, a special complex crime of kidnapping for ransom with homicide, she should be sentenced to only one death penalty. SUGGESTED ALTERNATIVE ANSWER: Paz committed the crime of serious illegal detention because the victim is aminor and because the victim died as a consequence of the detention, the special complex crime of serious illegal detention with homicide under the last paragraph of Article 267 of the Revised Penal Code is committed. vi Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died asa result of the stabbing. Candido was arrested and was tested to be positive for the use of “shabu” at the time he committed the stabbing. What should be the proper charge against Candido? Explain. (3%) “ SUGGESTED ANSWER: (Candido should be charged with murder qualified by treachery because the suddenness of the stabbing caught the victim by surprise and was totally defenseless. Being under the influence of dangerous drugs is a qualifying aggravating circumstance in the commission of a crime (Sec. 25, Rep Act 9165 Comprehensive Dangerous Drug Act of 2002); hence, the penalty for murder shall be imposed in the maximum. SUGGESTED ALTERNATIVE ANSWER: Candido should be charged with homicide only because the incident which gave rise to the stabbing. occurred accidentally. There is no conscious and 108 deliberate adoption of the means, method and manner of attack. However, the penalty for homicide shall be imposed in the maximum period because Candido was under the influence of dangerous drugs when he committed the crime, which is a qualifying circumstance under Section 25 of Rep. Act 9165. va Jose employed Mario as gardener and Henry as cook. ‘They learned that Jose won P5000,000.00 in the lotto, and decided to rob him, Mario positioned himself about 30 meters away from Jose's house and acted as lookout. For his part, Henry surreptitiously gained entry into the house and killed Jose who was then having his dinner. Henry found the 500,000.00 and took it. Henry then took a can of gasoline from the garage and burned the house to conceal the acts. Mario and Henry fled, but were arrested around 200 meters away from the house by alert barangay tanods. The tanods recovered the P500.000.00. Mario and Henry were charged with and convicted of robbery with homicide, with the aggravating circumstances of arson, dwelling, and nighttime. Mario moved to reconsider the decision maintaining that he was not at the scene of the crime and was not aware that Henry killed the victim; hence, he was guilty only of robber, as anaccomplice. Mario also claimed that he conspired with Henry to commit robbery but not to kill Jose. Henry, lkewise, moved to reconsider the decision, asserting that he is liable only for attempted robbery with homicide with no aggravating circumstance: dwelling is not aggravating in attempted robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at the time he was killed. Resolve with reasons the respective motions of Mario and Henry. (7%) 109SUGGESTED ANSWER: The motion of Mario contending that he should be liable only as an accompliceis without merit and therefore should be denied. There was conspiracy to commit the robbery between him and Henry. There being a conspiracy to commit robbery, the act of one is the act ofall. Since the conspiracy was only to commit robbery, Mario should be liable only for robbery as a co-principal, not for the’ composite crime of robbery with homicide. Mario, being 30 meters away from the victim's house, could not have known what Henry was doing inside the victim's (Jose's) house, so much so that he was not in a position to stop the same. Mario, therefore, cannot properly be made answerable for what Henry did inside Jose's house which was not agreed upon. Applying the subjective test to his participation asa co-conspirator to the robbery, Mario's criminal liability should be aggravated by nighttime but not by dwelling or arson. Henry's motion toreconsider the decisionis, likewise, without merit and should be denied. He is criminally Mable for robbery with homicide. His contention that he 4s only able for attempted robbery with homicide is not correct because the unlawful taking of the P500,000.00 is deemed complete from the moment he gained control of the money even if he had no opportunity to dispose of the same. The killing of Jose, having been committed on the occasion of a robbery, becomes a component of the robbery, giving rise to the special complex crime of robbery with homicide. Since Henry alone committed the killing of Jose a fact unknown to Mario, Henry alone should be convicted for said crime. Dwelling, although not aggravating in robbery with force upon things where the circumstance is inherent, is aggravating in robbery with violence against or with intimidation of persons. The burning of the house or arson accompanying tlie robbery is only a component of the robbery under 110 Article 294 (1), Revised Penal Code. Such burning does not constitute a separate crime from robbery with homicide. Nighttime is aggravating, applying the subjective test, unless the house of Jose was indeed well-lighted during the commission of the crime. SUGGESTED ALTERNATIVE ANSWER: Mario should be convicted with robbery only, not for robbery with homicide because he conspired only in the commission of the robbery. As a conspirator in said crime, he isllable as co-principal and not as an accomplice only. His motion for reconsideration claiming that he should be liable only for robbery has merit, but not his contention that he should be liable as an accomplice only. On the other hand, Henry's motion for reconsideration should be denied for lack of merit. His contention that his liability should only be for attempted robbery with homicide because they did not benefit from the P500,000.00 lacks merit. In robbery, the crime is consummated the moment the unlawful taking is complete even though the offender was not able to appropriate or dispose of the personal property taken. ‘The contention that no aggravating circumstance attended the commission of the crime is not correct. In robbery with violence or intimidation against person, dwelling is aggravating to the offender who entered the dwelling of the offended party. Nighttime is not aggravating because the house of the victim was lighted. ‘The burning of the victim's house is not a separate crime of arson but only a component of the robbery under Article 294, RPC. vor Pete, a security guard, arrived home late one night after rendering overtime. He was shocked to see Flor, his mlwife, and Benjie, his best friend, completely naked having sexual intercourse. Pete pulled out his service gun and shot and killed Benjie. Pete was charged with murder for the death of Benjie. Pete contended that he acted in defense of his honor and that, therefore, he should be acquitted of the crime. The court found that Benjie died under exceptional circumstances and exonerated Pete ofthe crime, butsentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Pete to pay indemnity to the heirs of the victim in the amount of P50,000.00, a) Is the defense of Pete meritorious? Explain. b) Under Article 247 of the Revised Penal Code, is destierro a penalty? Explain. ¢) _ Did the court correctly order Pete to pay indemnity despite his exoneration under Article 247 of the Revised Penal Code? Explain. (5%) SUGGESTED ANSWER: 8) The defense of Pete lacks merit. He could not have acted in defense of honor, because there was no unlawful aggression against him. At most, what Benjie did could be regarded only as sufficient provocation to Pete. The Court correctly ruled that Benjle's killing was done under the exceptional circumstances provided for in Article 247 of the Revised Penal Code. b) _Destierrois one of the principal penalties under Article 25 of the Revised Penal Code, but under the exceptional circumstances provided for in Article 247 of the Code, destierro is not intended as a penalty but a means to remove the accused from the vicinity, for his protection against possible reprisal from the family or relatives of the other spouse or those of the paramour ‘or mistress. (People v. Coricor, 79 Phil 672 [19471). 112 ©) Yes, the court correctly ordered Pete to pay indemnity, because the legal consequence of the exceptional circumstance in Article 247 of the Code is that ofan exempting circumstance where generally there 4s civil Hability although there may be no criminal Mability. SUGGESTED ALTERNATIVE ANSWER: ¢) Pete may not be made to pay indemnity because this is part of civil liability which arises only when there 1s criminal ability. He is not civilly liable, because he is, not criminally Hable. ix Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a day-long official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for P20,000.00, although the car was worth P800,000.00. a) What are the respective crimes, if any, committed by Allan, Danny and Jules? Explain. b) What, if any, are their respective civil Habilities? Explain. (5%) SUGGESTED ANSWER: a) Allan committed the crime of malversation by abandonment or negligence in leaving the government car assigned to him for his official use and for which he was accountable, with the ignition key inthe car unlocked. Danny committed the crime of fencing for having bought the car which was the proceeds of carnapping. @ crime in the nature of theft or robbery of motor vehicle. ‘The presumption of fencing applies to him for he paid 113price so inadequate for the value of the car suggestive that the car was not legitimately acquired by his brother. Jules committed the crime of carnapping for the unlawful taking, with intent to gain, of the government's motor vehicle. Unlawful taking of a motor vehicle is now governed by the Anti-Carnapping Act of 1972, Rep. Act 6539, not by the provisions of the Revised Penal Code on theft or robbery. b) Allan, Jules and Danny are all civilly liable for restitution of the car to the government, or if no longer possible, reparation of the damages caused by payment of the replacement cost of the car minus allowance for depreciation, and to indemnify consequential damages. ‘SUGGESTED ALTERNATIVE ANSWER: Danny should be liable as an accessory, not as a fence, if the crime charged to Jules is qualified theft because there is no accessory under the Anti-Carnapping Act of 1972. (Rep Act No. 6359) x Duringa PNPbuy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) toaposeur-buyer. CaoShih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section. the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500,000.00 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes: a) Direct bribery; b) Indirect bribery: ©) Section 3{e) of RA 3019 (Anti-Graft and Corrupt Practices Act); 4) Obstruction of Justice under PD 1829; (796) 1a SUGGESTED ANSWER: Patrick committed the crimes of direct bribery under Article 210 of the Revised Penal Code, Violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act (R.A. 3019), and Obstruction of Justice under Section 1(b) of PD 1829. Direct bribery was committed by Patrick when, for a consideration of 500,000.00, he committed a violation of PD 1829 by destroying the drugs which were evidence entrusted to him in bis official capacity. Indirect bribery is not committed, because he received the P500,000.00as a consideration for destroying the evidence against the offender, which was under his official custody as a public officer. The money was not delivered to him simply as a gift or present by reason of his public office. Patrick also violated Section S{e), RA. 3019 causing undue injury to the government through evident bad faith, giving unwarranted benefit to the offender by destroying evidence of a crime. Obstruction of justice under Section 1 (b) of P.D. 1829is committed by destroying evidence intended tobe ‘used in official proceedings in criminal case. XI OnJuly 1,2004, Jet Matulis, a pedophile, gave P1,000.00 to Sherly, an orphan and a prostitute and brought her to a motel. He inserted a rusty and oversized vibrator into her vagina with such force that she bled profusely. Jet panicked and fled. Sherly was brought to the hospital and died a few days later because of shock caused by hemorrhage. a) What crime or crimes did Jet Matulis commit? Explain, 115,b) If Sherly were a minor when she died, would your answer be the same? Explain. (5%) ‘SUGGESTED ANSWER: a) Jet Matulis should be liable only for the crime of homicide for the death of Sherly , assuming that she was not a minor (in the light of the following question) since the sexual assault was committed without any of the circumstances mentioned in of Article 266-A (1) of the Revised Penal Code as rape. It appears that the offender and the offended party went to the hotel for mutual sexual gratification. b) lfSherly were aminor when she died, the crimes of homicide and child abuse in violation of Rep. Act 7610 (Special Protection of Children against abuse, exploitation, discrimination and for other purposes), are committed by Jet Matulis, provided Sherly is not less than 12 years old. If Sherly was less than 12 years old then, the crime committed by Matulis is rape (through sexual assault) with Homicide, a special complex crime under Article 266-B of the Revised Penal Code. Note: The Committee suggests that credit be given to well-reasoned answers, because there are so many answers that can be given as to the crime committed. xm Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayor's name and regularly deposited various amounts ranging from P500,000.00 to Pi Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito ‘was actually ajueteng operator and the amounts he deposited were, proceeds from his jueteng operations. What crime/s were committed? Who are criminally lable? Explain. (6%) 16 SUGGESTED ANSWER: On the part of Don Gabito, the crimes committed were: 1) Money laundering under Rep. Act 9160 (Anti- Money Laundering Act of 2001), as amended by Rep. Act 9194, since the money proceeds from an unlawful activity, i.e., jueteng are transacted as though coming from a legitimate source; 2) Corruption of public officials under Article 212 of the Revised Penal Code for having given the amounts that were deposited in an account which he opened in the Mayor's name for no reason but the public position or office held by the Mayor; 3) legal gambling under P.D. 1602 (Prescribing Stiffer Penalties on Ilegal Gambling) for being ajueteng operator. On the part of the Mayor, the crimes committed were: 1) Money laundering under the same laws above- mentioned if after learning that the money deposited in his account were proceeds of jueteng, he still continued using said fund: 2) Indirect Bribery for accepting such moneys deposited in his account by using them when they were given to him for no other reason except for his public position as a Mayor. 93) Violation of Rep. Act 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) for receiving such gift from someone who may be affected by the functions of his office. 7xu Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu’, An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 ‘grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article Il of RA 9165 for the possession of “shabu” and violation of Section 15, Article Il of RA 9165 for the use of marijuana. a) Are the charges proper? Explain. b)__ Soasnottobe sentenced todeath, ObieJuan offers to plead guilty to a lesser offense. Can he do so? Why? (5%) SUGGESTED ANSWER: a) The charge of possession of shabu is proper as the mere possession of such drug is punishable, but the charge of use of marijuana is not proper as Section 15 of Rep. Act 9165 (Comprehensive Dangerous Drugs Act of 2002) expressly excludes penalties for “use” of dangerous drugs when the person tested “is also found to have in possession such quantity ofany dangerous drug” provided for in Section 11 of such Act. 1b) No, because Section 23 of R.A. 9165 expressly provides that “Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.” For this reason, Obie Juan cannot be allowed to plead guilty to a lesser offense. xIV Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that 118 he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself tn an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Alwas living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization, What crime or crimes, if any, did Al Chua commit? Explain. (5%) SUGGESTED ANSWER: Al Chua committed (1) Perjury (Art. 183, RPC) and (2) Concubinage (Art. 334, RPC). ‘The crime of Perjury is committed by Al Chua when he stated under oath that he was living with Leni Chua in Sampaloc when in fact he was living with his mistress, and Leni Chua was already living in Cebu at the time of the filing of the petition. It is a false allegation under oath, ona material matter required by lawinnaturalization cases. ‘The withdrawal of the petition did not have the effect of negating the crime committed. At the time when the petition was filed, Al Chua was already living with his mistress Babes Toh in the conjugal dwelling in Manila, thus committing concubinage. xv In an interview aired on television, Cindee uttered defamatory staterhents against Erika, a successful and reputable businesswoman. Whatcrime or crimes did Cindee commit? Explain. (3%) SUGGESTED ANSWER: Cindee committed libel. Defamation made in a 119television program is penalized as libel under Art. 355 of the Revised Penal Code. Televison falls under “similar means” in the enumeration as “radio phonograph, theatrical exhibition, cinematographic exhibition, or any similar means” in said Article. (People v. Casten, et al., C.A. G.R. No. 07924 - CR., Dec. 13, 1974) 2004 BAR EXAMINATION 1 ‘A. RR represented to AA, BB, CC and DD that she could send them to London to work there as sales ladies and waitresses. She collected and received from them various amounts ofmoney for recruitment and placement fees totalling 400,000. After their dates of departure were postponed several times, the four prospects got suspicious and went to POEA (Phil. Overseas Employment Authority). There they found out that RR was not authorized nor licensed to recruit workers for employment abroad. They sought refund to no avail. Is RR guilty of any grave offense? Explain briefly. (5%) SUGGESTED ANSWER: A. Yes. RR is guilty of a grave offense, having engaged in illegal recruitment constituting the offense of economic sabotage which is punishable with life imprisonment and a fine of P100,000.00. Economic sabotage is an offense defined in 38(b) of the Labor Code, as amended by Pres. Decree No. 2018, which is incurred when the illegal recruitment is carried out in large scale or by a syndicate. It is ina large scale when there are three or more aggrieved parties, individually or as a group. And it is committed by a syndicate when three or more persons conspire or cooperate with one another in carrying out the illegal transaction, scheme or activity. B. DAN, aprivate individual, kidnapped CHU, aminor. On the second day, DAN released CHU even before any criminal information was filed against him, At the trial ofhis case, DAN raised the defense that he did not incur any criminal liability since he released the child before the lapse of the 3-day period and before criminal proceedings for Addnapping were instituted. 121Will DAN's defense prosper? Reason briefly. (5%) SUGGESTED ANSWER: B. No. DAN's defense will not prosper. Voluntary release by the offender of the offended party in kidnapping isnot absolutory. Besides, such release is irrelevant and immaterial in this case because the victim being a minor, the crime committed is kidnapping and serious illegal detention under Art. 267, Revised Penal Code, to which such circumstance does not apply. The circumstance may be appreciated only in the crime of Slight Hegal eee 268 (Asistio v. San Diego, 10 SCRA 673 a A. Onhis way home from office, ZZ rode in a jeepney. ‘Subsequently, XX boarded the same jeepney. Upon reaching a secluded spot in QC. XX pulled out a grenade from his bag and announced a hold-up. He told 22 to surrender his watch, wallet and cellphone. Fearing for his life, ZZjumped out of the vehicle. But as he fell, his head hit the pavement, causing his instant death . Is XX liable for 22's death? Explain briefly. (596) SUGGESTED ANSWER: A. Yes, XXis lable for 2Z’s death because his acts of pulling out a grenade and announcing 2 hold-up, coupled with a demand for the watch, wallet and cellphone ofZZs felonious, and such felonious act was the proximate cause of Z's jumping out of the jeepney, resulting in the latter's death. Stated otherwise, the death of 22 was the direct, natural and logical consequence of XX's felonious act which created an immediate sense of danger in the mind of ZZ who tried to avoid such danger by jumping out of the jeepney (People v. Arpa, 27 SCRA 1037 [1969). B. MNO, who is 30 years old, was charged as a druz pusher under the Comprehensive Dangerous Drugs Act of 2002. During pre-trial, he offered to plead guilty to the lesser offense concerning use of dangerous drugs. ‘Should the Judge allow MNO's plea to the lesser offense? Explain briefly. (5%) SUGGESTED ANSWER: B. _No, the Judge should not allow MNO's plea toa lesser offense, because plea-bargaining in prosecutions of drug-related cases is no longer allowed by Rep. Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002, regardless of the imposable penalty. m A. BBand CC, both armed with knives, attacked FT. ‘The victim's son, ST, upon seeing the attack, drew his gun but was prevented from shooting the attackers by AA, who grappled with him for possession of the gun. FT died from knife wounds. AA, BB and CC were charged with murder. In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury, contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil. Will AA's defense prosper? Reason briefly. (5%) SUGGESTED ANSWER: A. No, AA’s defense will not prosper because obviously there was a conspiracy among BB, CC and AA, such that the principle that when there is a conspiracy, the act of one is the act of all, shall govern. The act of ST, the victim's son, appears to be a legitimate defense hence, justified as a defense of his father against the unlawful aggression by BB and CC. ST's act to defend his father's life, cannot be regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act. 123