2017 SUPPLEMENTAL Bar Reviewer on Criminal Laws

By Judge Marlo Campanilla

1. Despite the application of the aberratio ictus rule, the accused is liable for
separate crimes, and not a compound crime if the bullet that killed that target victim
is different from the bullet that killed the third person, who was hit by reason of
mistake of blow. In People vs. Adriano, G.R. No. 205228, July 15, 2015, accused
treacherously fired his gun several times at his target victim. A bystander was also hit
by reason of mistake of blow. Both victims died. Accused is responsible not only for
the death of the target victim but also for the death of the third person, who was hit by
a stray bullet. He is liable for two separate crimes of murder. Treachery will be
appreciated even though one was killed because of aberratio ictus. But this is not a
compound crime since there is no showing that the victims were killed by single act
but several acts. When various victims expire from separate shots, such acts
constitute separate and distinct crimes.

In People vs. Flora and Flora, G.R. No. 125909, June 23, 2000, the accused was
convicted of two separate counts of murder: for the killing of two victims, Emerita, the
intended victim, and Ireneo, the victim killed by a stray bullet. The Court, due to the
presence of the aggravating circumstance of treachery, qualified both killings to
murder (People vs. Adriano, G.R. No. 205228, July 15, 2015).

2. The rules for the application of divisible penalties under Article 64 of RPC in
a case where prescribed penalty for the crime committed is prision mayor are as follows:

a. Aggravating circumstances - Regardless of the number of aggravating

circumstance, the court shall just impose the penalty of prision mayor in its maximum
period. It shall not impose a greater penalty than that prescribed by law. For example,
the court cannot graduate the penalty to reclusion temporal because of the presence of
several aggravating circumstances since the imposition of a penalty greater than
prision mayor is prohibited (People vs. Manlolo, G.R. No. 40778, January 26, 1989).

b. No modifying circumstance - When there are neither aggravating nor

mitigating circumstances, prision mayor shall be imposed in its medium period.

c. One mitigating circumstance - When there is only one mitigating

circumstance, prision mayor shall be imposed in its minimum period.

d. Special mitigating circumstance - When there are two mitigating

circumstances, the penalty next lower than the prescribed penalty of prision mayor
shall be imposed, and that is, prision correccional. Since the two mitigating
circumstances were considered to reduce the penalty, there is no remaining mitigating
circumstance that can be used to apply the reduced penalty of prision correccional in
its minimum period; hence, prision correccional shall be applied in its medium period
(Legrama vs. Sandiganbayan, G.R. No. 178626, June 13, 2012).

When there are three or more mitigating circumstances, the penalty next lower
than the prescribed penalty of prision mayor shall be imposed, and that is, prision
correccional. Since only two mitigating circumstances were considered to reduce the
penalty, there is/are remaining mitigating circumstance/s that can be used to apply
the reduced penalty of prision correccional in its minimum period (Legrama vs.
Sandiganbayan, supra).

Even if there are four mitigating circumstances, the prescribed penalty shall not
be reduced two degrees lower. In sum, the special mitigating circumstance will only
require the imposition of the penalty next lower than that prescribed by law.

e. Offset rule - When both mitigating and aggravating circumstances are present, the
court shall reasonably offset those of one class against the other according to their
relative weight.

If there is/are aggravating circumstance/s remaining after applying the offset

rule, prision mayor shall be applied in its maximum period.

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If there is no remaining modifying circumstance after applying the offset rule,

prision mayor shall be applied in its medium period.

If there is/are mitigating circumstance/s remaining after applying the offset

rule, prision mayor shall be applied in its minimum period.

Even though there are two remaining mitigating circumstances after applying
the offset rule, special mitigating circumstances shall not be considered. To appreciate
special mitigating circumstance for purpose of reducing the penalty, it is important
there is no aggravating circumstance. Thus, the application of offset rule, which
presupposes the presence of aggravating circumstance exclude the appreciation of the
offset rule.

3. Organized/syndicated crime group is a special aggravating circumstance. An

organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of gain in
the commission of any crime. Syndicate means association of gangsters. The concept
of organized/syndicated crime group contemplates the Yakusa in Japan, Mafia in the
United States of America, Hong Kong Triad, Akyat Bahay Gang, Red Scorpion Gang,
etc.

Organized/syndicated crime group presupposes conspiracy among members of

the syndicate to commit a crime for gain. However, although the existence of
conspiracy was established, this circumstance of organized/syndicated crime group
shall not be appreciated in the absence of proof that the accused were members of a
group organized for the general purpose of committing crimes for gain (People v. Musa,
G.R. No. 199735, October 24, 2012).

4. Accused committed homicide, the penalty for which is reclusion temporal. The
privileged mitigating circumstance of incomplete self-defense is also present. There are
two mitigating circumstances of confession and voluntary surrender and no
aggravating circumstance (1968 and 2013 Bar Exams). The penalty of reclusion
temporal shall be reduced to prision correccional because of incomplete self-defense
(Article 69). This penalty shall further be reduced to arresto mayor because of the
special mitigating circumstance (Article 64). Since the two mitigating circumstances
were used to reduce the penalty by one degree, there is no remaining mitigating
circumstance that can be used to apply arresto mayor in its minimum period. Hence,
arresto mayor shall be applied in its medium period, which has a range from 2 months
and 1 day to 4 months (People vs. Legrama, supra). The Indeterminate Sentence Law
is not applicable because the penalty is not more than one year. Hence, the court may
sentence the accused to suffer a straight penalty of 2 months and 1 day of arresto
mayor (Pangan vs. Gatbalite, G.R. No. 141718, January 21, 2005).

5. Accused committed homicide, the penalty for which is reclusion temporal. The
privilege mitigating circumstance of minority is also present. There are two mitigating
circumstances of confession and voluntary surrender and special aggravating
circumstance of quasi-recidivism. The penalty of reclusion temporal shall be reduced to
prision mayor because of minority (Article 68). Prison mayor shall be applied in its
maximum period because the accused is a quasi-recidivist. The special mitigating
circumstance of confession and surrender shall not be appreciated since there is an
aggravating circumstance of quasi-recidivism. Applying the ISLAW, the maximum
penalty shall be fixed anywhere within the range of prision mayor in its maximum
period (10 years and 1 day to 12 years); while the minimum penalty shall be fixed
anywhere within the full range of prision correccional (6 months and 1 day to 6 years),
which is the penalty next lower in degree. Hence, the court may sentence the accused
to suffer an indeterminate penalty of 2 years of prision correccional as minimum to 10
years and 1 day of prision mayor as maximum

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6. In 2012 and 1985 Bar Exams, accused, a minor, pleaded guilty to direct
assault with homicide. The penalty of reclusion temporal for homicide, which is the
most serious component of this complex crime (Article 48), shall be reduced to prision
mayor because of the privileged mitigating circumstance of minority (Article 68).
Because of the complex character of the crime, prision mayor shall be applied in its
maximum period although the mitigating circumstance of confession is present
(Article 48). Applying the ISLAW, the maximum penalty shall be fixed anywhere within
the range of prision mayor in its maximum period (10 years and 1 day to 12 years),
while the minimum penalty shall be fixed anywhere within the full range of prision
correccional (6 months and 1 day to 6 years), which is the penalty next lower in degree.
Hence, the court may sentence the accused to suffer an indeterminate penalty of 2
years of prision correccional as minimum to 10 years and 1 day of prision mayor as
maximum.

7. The modes mentioned in Article 89 of RPC such as death extinguish the

criminal liability of the offender but not the crime itself (People vs. Henry Go, G.R. No.
168539, March 25, 2014). By reason thereof, pardon looks forward and merely
abolishes or forgives the punishment (People vs. Patriarca, Jr., G.R. No. 135457,
September 29, 2000). However, there is a special rule on amnesty. Article 89 of RPC
provides that amnesty completely extinguishes the penalty and all its effects. Because
of this special rule, the Supreme Court in Patriarca stated that amnesty looks
backward and abolishes and puts into oblivion the offense itself. In sum, amnesty
extinguishes not only the criminal liability but also the crime itself.

Under PD No. 968 as amended by RA No. 10707, final discharge of the

probationer extinguishes his criminal liability. The intention of the law is to make a
mode of criminal extinction in addition to those listed in Article 89 of RPC. Since final
discharge of the probationer under PD No. 968 merely extinguishes his criminal
liability, and not all effects of the crime, the effect of such discharge is similar to death
or pardon, and not amnesty. In sum, such discharge looks forward and extinguishes
merely the criminal liability and not the crime itself.

Since the previous crime is not extinguished by the discharge of the probationer
or by pardon, the same shall be considered for purposes of determining if the accused
is a recidivist in committing a second crime, which is embraced in the same title. On
the other hand, since the previous crime is extinguished by amnesty, the same shall
not be considered for purposes of determining if the accused is a recidivist in
committing a second crime, which is embraced in the same title.

9. Under Section 70 of RA No. 9165, a first time minor offender can apply for
probation for the crime of illegal possession or use of dangerous drugs even if the
penalty is higher than 6 years of imprisonment. But this provision is only applicable if
the minor is a first time offender, who is charged with possession or use of dangerous
drugs. If the charge is selling dangerous drugs, the applicable rule is Section 24 of RA
No. 9165, which disqualifies dangerous drug traffickers and pushers for applying for
probations. The law considers the users and possessors of illegal drugs as victims
while the drug traffickers and pushers as predators (Padua vs. People, G.R. No.
168546, July 23, 2008).

To determine whether the accused is eligible or disqualified for probation,

multiple prison terms imposed in one decision in a consolidated cases involving several
offenses should not be added up. The multiple prison terms are distinct from each
other, and if none of the terms exceeds 6 years, he is entitled to probation (Francisco
vs. CA, G.R. No. 108747, April 6, 1995; 1997 Bar Exam). The rule on disqualification
by reason of previous sentence will not apply because technically the accused has no
previous sentence where the cases are consolidated. However, if the multiple prison
terms are imposed in different decisions, his previous sentence will disqualify him to
apply for probation if the penalty imposed is more than 6 months and 1 day of
imprisonment or a fine of more than P1,000.00.

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10. Probation suspends the service of principal penalty of imprisonment and

accessory penalty of disqualification (Moreno v. Comelec, G.R. No. 168550, August 10,
2006; Villareal vs. People, G.R. No. 151258, December 01, 2014). However, it does
neither affect the civil aspect of the case (Budlong vs. Palisok, G.R. No. 60151, June
24, 1983) nor the administrative liability of the accused (Pagaduan vs. CSC, G.R. No.
206379, November 19, 2014). On the other hand, pardon remits the principal penalty
of imprisonment but not the accessory penalties such as disqualification unless there
is an express remission of such accessory penalties (Risos-vidal vs. Lim, G.R. No.
206666, January 21, 2015).

11. Criminal liability for personal penalties is totally extinguished by the death
of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if
the offender dies prior to final judgment. The term "personal penalties" refers to the
service of personal or imprisonment penalties, while the term "pecuniary penalties"
refers to fines and costs, including civil liability predicated on the criminal offense
complained of (i.e., civil liability ex delicto). However, civil liability based on a source of
obligation other than the delict survives the death of the accused and is recoverable
through a separate civil action (Villareal v. People, G.R. No. 151258, February 1,
2012);

12. If the main objective is to commit robbery, and homicide and arson are
perpetrated by reason or on occasion thereof, the crime committed is robbery with
homicide while arson shall be integrated into this special complex crime (People vs.
Jugueta, G.R. No. 202124, April 05, 2016). However, by means of fire shall be
considered as an ordinary aggravating circumstance (U.S. vs. Bulfa, G.R. No. 8468,
August 20, 1913).

If the robbers gained possession of the property inside a lumber, and in the
course thereof, a victim was killed the crime committed is robbery with homicide.
Failure to bring out the property from the lumber compound will not negate the
consummation of robbery since inability to freely dispose the property is not an
element of robbery (Peope vs. Salvilla, G.R. No. 86163, April 26, 1990). On the other
hand, if the robber by means of intimidation was demanding money from the victim,
who refused to do so, and as a consequence, the former killed the latter, the crime
committed is attempted robbery with homicide (People vs. Barra, G.R. No. 198020, July
10, 2013).

13. In Ysidoro vs. People, G.R. No. 192330, November 14, 2012, the mayor, who
applied ten boxes of food appropriated for feeding program to the beneficiaries of
shelter assistance program, is liable for technical malversation. Mayors act, no matter
how noble or miniscule the amount diverted, constitutes the crime of technical
malversation. Criminal intent is not an element of technical malversation. The law
punishes the act of diverting public property earmarked by law or ordinance for a
particular public purpose to another public purpose. The offense is malum prohibitum,
meaning that the prohibited act is not inherently immoral but becomes a criminal
offense because positive law forbids its commission based on considerations of public
policy, order, and convenience. It is the commission of an act as defined by the law
and not the character or effect thereof that determines whether or not the provision
has been violated. Hence, malice or criminal intent is completely irrelevant. Dura lex
sed lex.

14. The legislative declaration in RA No. 7659 that the crime of plunder under
RA No. 7080 is a heinous offense implies that it is a malum in se. For when the acts
punished are inherently immoral or inherently wrong, they are mala in se and it does
not matter that such acts are punished in a special law, especially since in the case of
plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to
treat prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without
regard to the inherent wrongness of the acts (Estrada vs. Sandiganbayan, G.R. No.
148560, November 19, 2001).

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15. A common misconception is that all mala in se crimes are found in RPC,
while all mala prohibita crimes are provided by special penal laws. In reality, however,
there may be mala in se crimes under special laws, such as plunder under R.A. No.
7080, as amended (Estrada vs. Sandiganbayan, G.R. No. 148560, November 19,
2001). Similarly, there may be mala prohibita crimes defined in the RPC, such as
technical malversation (Ysidoro vs. People, G.R. No. 192330, November 14, 2012). The
better approach to distinguish between mala in se and mala prohibita crimes is the
determination of the inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a crime mala in se; on the
contrary, if it is not immoral in itself, but there is a statute prohibiting its commission
by reasons of public policy, then it is mala prohibita (Dungo vs. People, G.R. No.
209464, July 1, 2015). Thus, election offense (dadag-bawas) is malum prohibitum
although it is punishable under special law (Garcia v. Court of Appeals, G.R. No.
157171, March 14, 2006).

16. Having sexual intercourse through force with a gay, who underwent gender
reassignment, is not rape through sexual intercourse since the victim is not a woman.
Rape through sexual intercourse is not a gender-free crime. It is committed by a man
having carnal knowledge of a woman through force. Neither is this crime instrument
or object rape since the offender used his penis, and not an instrument or object, in
committing the crime. Nor is this crime rape through oral intercourse or sodomy since
the artificial vagina of the victim is not a mouth or anal orifice. Hence, the crime
committed is acts of lasciviousness.

17. Under Article 423 of the Old Penal Code, death under exceptional
circumstance is committed if the husband surprised his wife in the act of adultery (en
adulterio a su mujer). Adultery under this Code is committed by a married woman
who shall have sexual intercourse with a man not her husband. The Revised Penal
Code extended the benefit of the original Article 423 of the Penal Code to both
husband and wife, and for this reason, the phrase "in the act of adultery" was changed
to "in the act of committing sexual intercourse" (Opinion of Justice Luarel in People vs.
Gonzales, G.R. No. 46310, October 31, 1939). Thus, the phrase "in the act of
committing sexual intercourse" in Article 247 of the Revised Penal Code should be
interpret within the Spanish context of adulterio, which excludes homosexual
intercourse between a wife and another woman.

18. To be entitled to the benefit of death under exceptional circumstance, it if

important that the husband caught his wife in the very act of sexual intercourse. If the
husband caught his infidel wife after such sexual intercourse, this exceptional
circumstance shall not be considered (People vs. Gonzales, G.R. No. 46310, October
31, 1939; People vs. Marquez, G.R. No. 31268, July 31, 1929). Hence, if the husband
saw a video of his wife having sexual intercourse with another man, which incident
was recorded a month ago, killing his wife will not constitute death under exceptional
circumstance since he did not caught her wife in the very act of sexual intercourse.

19. In People vs. Abarca, G.R. No. 74433, September 14, 1987, upon reaching
home, the accused found his wife in the act of sexual intercourse with the victim.
When they noticed the accused, the wife pushed her paramour who got his revolver.
The accused who was then peeping above the built-in cabinet in their room jumped
and ran away. Immediately, thereafter, the accused went to look for a firearm at
Tacloban City. Thereafter, he went back to his house with a firearm but he was not
able to find his wife and victim. He proceeded to the mahjong session where he found
the victim playing. Accused fired at the victim three times with his rifle. The victim
died. This is death under exceptional circumstance although about one hour had
passed between the time of discovery of infidelity and killing. Article 247, in requiring
that the accused "shall kill any of them or both of them... immediately" after
surprising his spouse in the act of intercourse, does not say that he should commit
the killing instantly thereafter. It only requires that the death caused be the proximate
result of the outrage overwhelming the accused after chancing upon his spouse in the

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act of infidelity. But the killing should have been actually motivated by the same blind
impulse, and must not have been influenced by external factors. The killing must be
the direct by product of the accused's rage.

20. For purposes of Article 4 of the Revised Penal Code, death under
exceptional circumstance is not an intentional felony. In People vs. Abarca, G.R. No.
74433, September 14, 1987, according to the Supreme Court, Article 4 presupposes
that the act done amounts to a felony. If the act constitutes death under exceptional
circumstances, and not murder, the accused cannot be held liable for the injuries
sustained by third persons, who were hit by reason of mistake of blow, on the basis of
Article 4. Accused was convicted of reckless imprudence resulting in physical injuries.

21. Section 3 of RA No. 3019 reads: In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer. It is clear then that one may be charged with violation of RA No.
3019 in addition to a felony under RPC for the same act (Ramiscal, Jr. vs.
Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006). Thus, the offender in
addition to violation of Section 3 RA No. 3019 can be held liable for falsification of
document by public official (Suero vs. People, G.R. No. 156408, January 31, 2005); or
malversation through falsification of document (Pajaro, G.R. Nos. 167860-65, June 17,
2008) or failure to render an accounting (Aloysius Dait Lumauig v. People, G.R. No.
166680, July 7, 2014).

22. The basis of delito continuado principle is the singularity of the criminal
intent or impulse. Hence, this rule does not apply in malum prohibitum because malice
or criminal intent is immaterial. Violation of BP Blg. 22 is malum prohibitum. Thus, the
drawer for issuing several bouncing checks is liable for violations of BP Blg. 22 as
many as there are checks issued (Lim vs. People, G.R. No. 143231, October 26, 2001).

Corruption under Section 3 (e) RA 3019 partakes the nature of malum

prohibitum. However, this crime must be committed with criminal intent since evident
bad faith or manifest partiality is an element thereof. Since criminal intent is material
in this crime, the doctrine of delito continuado, which is based on singularity of the
criminal intention, is applicable. In Santiago vs. Garchitorena, G.R. No. 109266,
December 2, 1993, En Banc, the several acts of the accused of favoring 32 aliens on
the same period of time in violation of the Anti-Graft Law were considered as
constitutive of one continued crime.

23. The document must contain narration of facts and not conclusion of law
to commit an act of falsification under paragraph 4 of Article 171. Conclusion of law is
defined as a proposition not arrived at by any process of natural reasoning from a fact
or combination of facts stated but by the application of the artificial rules of law to the
facts pleaded (Blacks Law Dictionary). Statement of a candidate in a certificate of
candidacy she was born on March 29, 1931 instead of March 29, 1933, her true
birthday, to make it appear that she was above 23 years old on the date of election to
comply with the 23-years-old requirement is making an untruthful statement in a
narration of fact. This is falsification. However, statement that she was "eligible" to the
office of municipal councillor based on the belief that the 23-years-old requirement
could be adequately met if she reached 23 years upon assuming the councillorship is
conclusion of law. This is not falsification (People vs. Yanza, G.R. No. L-12089, April
29, 1960).

24. The local accountable officers under this Code are those who has possession
or custody of local government funds because of the nature of their functions or has
participated in the use or application of thereof (Zoleta vs. Sandiganbayan, G.R. No.
185224, July 29, 2015). Mayor and treasurer have duty to participate in the release of
funds. Their signatures are needed to disburse municipal funds. No payment can be
effected without their signatures. They had control and responsibility over the funds;
hence, they are accountable officer (Manuel vs. Hon. Sandiganbayan, G.R. No.
158413, February 08, 2012).

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In Panganiban vs. People, G.R. No. 211543, December 09, 2015, the Supreme
Court ruled that a mayor with respect to cash advance cash advance for an official
travel that he did not undertake is not an accountable officer since his duty is not to
collect money or property from the public.

However, the application of the Panganiban case must be confined to cash

advance received by a mayor. A public officer with respect to cash advance for
livelihood (People vs. Icdang, G.R. No. 185960, January 25, 2012) or cash advance to
buy property (People vs. Devalos, G.R. No. 145229, April 20, 2006) is treated by the
Supreme Court as an accountable officer. Moreover, a mayor with respect to funds in
the local treasury is an accountable officer because he has a duty to participate in the
release thereof (Manuel vs. Sandiganbayan, supra) and he is responsible for all
government funds pertaining to the municipality (People vs. Panteleon, G.R. Nos.
158694-96, March 13, 2009).

25. Where the penis of the accused was inserted into and withdrawn from
victims vagina three times for purpose of changing position (People vs. Aaron, G.R.
Nos. 136300-02, September 24, 2002) or two times for purpose of resting for 5 to 10
seconds (People v. Pinic, G.R. No. 186395, June 8, 2011), the several penetrations
motivated by a single criminal intent to satisfy his lust in violation of single penal
provision (Article 266-A of RPC) constitute a continued crime of rape. But where the
penis of the accused was inserted into and withdrawn from victims vagina three times
for purpose of resting for 5 minutes, he satisfied his lust every time he would withdraw
his penis to rest. Since the three penetrations were motivated by separate three
criminal impulses to satisfy his lust, the delito continuado principle is not applicable,
and hence, he is liable for three separate crimes of rape (People vs. Lucena, GR No.
190632, February 26, 2014).

26. The elements of syndicated estafa under PD No. 1689 are: (a) estafa or other
forms of swindling under the Revised Penal Code is committed; (b) it is committed by a
syndicate of 5 or more persons; and (c) defraudation results in the misappropriation of
moneys contributed by stockholders, or members of rural banks, cooperative,
"samahang nayon," or farmers associations, or of funds solicited by
corporations/associations from the general public (People vs. Tibayan, G.R. Nos.
209655-60, January 14, 2015).

The fact that the entity involved was not a rural bank, cooperative, samahang
nayon or farmers' association does not take the case out of the coverage of PD No.
1689. The law applies to other corporations or associations operating on funds
solicited from the general public (People vs. Balasa, G.R. No. 106357, September 3,
1998). Thus, the entity can be a commercial bank (Galvez vs. Hon. CA, G.R. No.
187919, February 20, 2013).

If the money misappropriated is not solicited from the general public, the crime
committed simple estafa (Hao vs. People, G.R. No. 183345, September 17, 2014).
Regardless of the number of the accused, syndicated estafa is not committed when the
offenders are not owners or employees who used the association soliciting fund from
the general public to perpetrate the crime. In sum, the victims must be general public
such as stockholders and members of the association, and not the corporation or the
association itself; on the other hand, the offenders must be the owners, employees and
members of the association or corporation, who used this entity to defraud the general
public (Galvez vs. Hon. CA, G.R. No. 187919, February 20, 2013).

27. The similarities and differences among robbery by band, brigandage and
highway robbery/brigandage are as follows:

a. Place of commission - In brigandage, the band is formed to commit robbery

on highways. In highway robbery/brigandage, robbery is committed on highways. In
robbery by band, the place of commission is not important.

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b. Number of Offenders In brigandage and robbery by band, the offenders are

at least four armed men. However, highway robbery/brigandage can be committed by
as single offender because the law uses the words any person in reference to the
offender.

c. Character of the offenders In brigandage and highway robbery/brigandage,

the offenders are brigands or highway robbers, who are regularly hanging or roaming
on highways and indiscriminately chancing upon travellers who they can rob or seize
for extortion and thus, to commit these crimes, the commission of robbery must not
be an isolated incident and the victim must be indiscriminate. In robbery by band, the
offenders are not brigands or highway/robbers, and thus, this crime can be committed
even though the commission thereof is an isolated incident and the victim is pre-
determined.

But if the place of commission is not highway, the crime committed is robbery
by band regardless of whether the victim is indiscriminate or predetermined or the
incident is isolated or not.

d. Consummation - In brigandage, formation of at least four armed men to

commit robbery on the highway consummates the crime; in robbery by band and
highway robbery/brigandage actual commission of robbery is an indispensable
element thereof.

e. Presumption - In brigandage, there is a presumption that the armed men are

brigands if one is in possession of an unlicensed firearm. In highway
robbery/brigandage, and robbery by band, there is no rule on presumption.

28. If the crime is committed by the person without using the loose firearm,
illegal possession of loose firearm shall be considered as a distinct and separate
offense (Section 29, RA No. 10591). For example, the accused can be prosecuted for
illegal possession of dangerous drugs and illegal possession of loose firearm. If the
crime is committed by the person with the use the loose firearm, illegal possession of
loose firearm is not a separate offense. In such a case, the following rules must be
observed:

When loose firearm is used in committing rebellion or attempted coup dtat,

the accused shall be prosecuted for rebellion or attempted coup dtat, while
possession of loose firearm is absorbed (Section 29, RA No. 10591).

When loose firearm is used in committing a crime such as homicide with a

graver penalty, the accused shall be prosecuted for the graver crime (homicide), but
the court shall apply the penalty in its maximum period (Section 29, RA No. 10591).
Use of loose firearm is a special aggravating circumstance (People vs. Salibad, G.R. No.
210616, November 25, 2015)

When loose firearm is used in committing a crime such as alarm and scandal
with a lesser penalty, the accused shall be prosecuted for the lesser crime (alarm and
scandal) but the court shall impose the penalty prescribed for illegal possession of use
of loose firearm (Section 29, RA No. 10591).

When loose firearm is used in committing a crime with a penalty, the maximum
period of which is equal to that for illegal possession of loose firearm, the accused
shall be prosecuted for the former with additional penalty of prision mayor in its
minimum period. For example, the penalty prescribed for simple robbery is prision
correccional in its maximum period to prision mayor in its medium period. The penalty
for possession of small arm is prision mayor in its maximum period. The maximum
period of the penalty for robbery is equal to the penalty for possession of small arm. If
this loose firearm is used to commit robbery, the accused shall be prosecuted for

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robbery with principal penalty and additional penalty of prision mayor in its minimum
period.

An imitation firearm used in the commission of a crime shall be considered a

real firearm and the person who committed the crime shall be punished in accordance
with RA No. 10519.

29. The term woman in violence against woman pertains to a woman with
whom the offender has or had marital, sexual or dating relationship. Sexual relations
refer to a single sexual act which may or may not result in the bearing of a common
child. Dating relationship refers to a situation wherein the parties live as husband and
wife without the benefit of marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. But an "away-bati" or a fight-
and-kiss thing between two lovers is a common occurrence. Their taking place does
not mean that the romantic relation between the two should be deemed broken up
during periods of misunderstanding (Ang v. Court of Appeals, G.R. No. 182835, April
20, 2010). However, a casual acquaintance or ordinary socialization between two
individuals in a business or social context is not a dating relationship.

RA No. 9262 covers past relationship because it uses the terms former wife
and the past tense had in the phrase a woman with whom he has or had a sexual or
dating relationship. Thus, psychological violence can be committed against an ex-
girlfriend by threatening to spread a picture depicting a naked woman where the face
of the victim was superimposed therein (Ang v. Court of Appeals, G.R. No. 182835,
April 20, 2010). While it is required that the offender has or had a sexual or dating
relationship with the offended woman, it is not indispensable that the act of violence
be a consequence of such relationship. It is immaterial whether the relationship had
ceased for as long as there is sufficient evidence showing the past or present existence
of such relationship between the offender and the victim when the physical (or
psychological) harm was committed (Dabalos v. RTC, G.R. No. 193960, January 7,
2013).

The phrase any act or series of acts" in defining violence against woman means
that a single act of harassment, which translates into violence, would be enough. The
object of the law is to protect women and children. Punishing only violence that is
repeatedly committed would license isolated ones (Ang v. Court of Appeals, G.R. No.
182835, April 20, 2010).

30. Terrorism is perpetrated by a person, who commits a predicate crime, which

creates a condition of widespread and extraordinary fear and panic among populace in
order to coerce the government to give in to an unlawful (RA No. 9372). Demand by Al
Queda against the US government not to interfere with the affairs of the Muslim is an
example of the element of coercing the government to give in to an unlawful.

The predicate crimes of terrorism are: (1) piracy, (2) highway robbery, (3)
hijacking, (4) rebellion, (5) coup etat, (6) murder, (7) kidnapping and serious illegal
detention, (8) crimes involving destruction, (9) arson, and (10) crime involving
unlicensed firearm and explosives. It also includes violation of Toxic Substances and
Hazardous and Nuclear Waste Control Act and violation of Atomic Energy Regulatory
and Liability Act.

The crime of rebellion or coup dtat is necessarily included in the charge of

terrorism; hence, terrorism and its predicate crime is subject to the variance rule and
double jeopardy.

When a person has been prosecuted for terrorism in relation to rebellion or

coup d'tat, but the evidence merely establish the predicate crime of rebellion or coup
d'tat but not the other elements of terrorism such as coercing the government to give
in an unlawful demand, the court can convict the accused of rebellion or coup d'tat.
This is in accordance with the variance rule.

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When a person has been prosecuted for terrorism in relation to rebellion or

coup d'tat, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the
charge, the acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for rebellion or coup d'tat (Section 49 of RA No. 9372). Rebellion
and coup d'tat are predicate crimes of terrorism. Hence, the latter absorbs the
former.

As a rule, the period within which a person detained for terrorism or conspiracy
to commit terrorism must be delivered to judicial authorities is 36 hours in
accordance with Article 125 of RPC since the penalty of 40 years of imprisonment
prescribed for is equivalent to afflicted penalty.

If the apprehending police or law enforcement officers fail to deliver the terrorist
suspect within the period of 36 hours, they are liable for delay in the delivery of
detained person under Article 125 of RPC.

However, as a result of surveillance and examination of bank deposits, the Anti-

Terrorism Council may authorized in writing any police or law enforcement personnel
to take custody of a person charged with or suspected of terrorism or conspiracy to
commit terrorism. With this written authority, the police or law enforcement personnel
may arrest or take custody the terrorist suspect and delivers him to the proper judicial
authority within a period of three (3) days therefrom without incurring any criminal
liability for delay in the delivery of detained persons notwithstanding Article 125 of
RPC to the contrary (Section 18 of RA No. 9372).

If the apprehending police or law enforcement officers fail to deliver the terrorist
suspect within the period of 3 days as required by Section 18 of RA No. 9372, they are
liable for failure to deliver suspect to the proper judicial authority under Section 20 of
the same law.

In the event of an actual or imminent terrorist attack, suspects may be detained

for more than three (3) days provided that the apprehending officer must obtain a
written approval from official of a Human Rights Commission, or judge, or justice of
the Sandiganbayan or the Court of Appeals nearest the place of the arrest. If the arrest
is made during Saturdays, Sundays, holidays or after office hours, the arresting police
or law enforcement personnel shall bring the person thus arrested to the residence of
any of the officials mentioned above that is nearest the place where the accused was
arrested. The approval in writing of any of the said officials shall be secured by the
police or law enforcement personnel concerned within five (5) days after the date of the
detention of the persons concerned: Provided, however, That within three (3) days after
the detention the suspects, whose connection with the terror attack or threat is not
established, shall be released immediately (Section 19 of RA No. 9372).

31. In People vs. Figueroa, G.R. No. 186141, April 11, 2012, the poseur-buyer
showed shabu for sale to poseur buyer. The sale was aborted when the police officers
immediately placed accused under arrest. The crime committed is attempted sale.

In People vs. Tumulak, G.R. No. 206054, July 25, 2016, accused intended to
sell ecstasy and commenced by overt acts the commission of the intended crime by
showing the substance to a police officer. Showing a sample is an overt act of selling
dangerous drugs since it reveals the intention of the offender to sell it to the poseur-
buyer. More importantly, the only reason why the sale was aborted is because the
police officers identified themselves as such and placed accused under arrest - a cause
that is other than her own spontaneous desistance. Accused was convicted of
attempted sale of dangerous drugs.

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In People vs. Burton, G.R. No. 114396, February 19, 1997, the accused came
from a hotel in Paraaque, where he stayed before he checked in at the NAIA and was
bound for Sydney, Australia. At the departure area of the airport, authorities
discovered dangerous drugs in the two pieces of luggage of the accused. It was held
that it is apparent that he wanted to bring the prohibited drug from Paraaque to
Sydney. However, because he was not able to pursue his trip, he should be considered
only to have attempted to transport the prohibited drug to Sydney.

In People vs. Dimaano, G.R. No. 174481, February 10, 2016, the accused, who
was caught in possession of dangerous drugs at the departure area of Manila
Domestic Airport was also convicted of attempted transportation of dangerous drug.
However, in People vs. Jones, G.R. No. 115581, August 29, 1997, the accused was
also caught in possession of dangerous drugs at the departure area of NAIA, and yet,
he was convicted of consummated transportation of dangerous drugs. At any rate, the
penalty prescribed for transportation of dangerous drugs is the same as that for
attempted transportation of dangerous drugs.

The accused cannot be convicted of attempted transportation of dangerous

drugs where he was caught in possession thereon inside his car, which is not in
transit. The theory of the prosecution that there is clear intent to transport the drug is
speculative (San Juan v. People, G.R. No. 177191, May 30, 2011).

32. To be held liable for estafa in relation to the Trust Receipt Law, the accused
must have the obligation to turn over the proceeds of sale of the entrusted goods, or
return the unsold goods to the entruster, but he has violated this undertaking. Thus,
the offender must have acquired the goods for resale, and not for consumption. In this
case, the accused is not an importer or retail dealer, but one who received the goods to
be used for the fabrication of steel communication towers. Hence, the transaction
between the accused and the bank is simple loan, and not trust receipt. Failure to
perform obligation under this loan agreement is neither estafa through
misappropriation nor a violation of the trust receipt law. To rule otherwise is to violate
the constitutional provision on non-imprisonment by reason of non-payment of debt
(Ng vs. People, G.R. No. 173905, April 23, 2010; Colinares and Veloso vs. CA, G.R. No.
90828, September 5, 2000; Yang vs. People, G.R. No. 195117, August 14, 2013).

33. The obligation of the entrustee under the trust receipt agreement is to turn
over to proceeds of sale of the entrusted goods, or return the unsold goods to the
entruster. Violation of this undertaking constitutes estafa in relation to the trust
receipt law. Thus, turning over the proceeds of sale (Bank of Commerce vs. Serrano,
G.R. No. 151895, February 16, 2005) or turning over the unsold goods is a defense in
violation of trust receipt law. On the other hand, the obligation of the entrustee-debtor
under the letter of credit is to pay the bank the amount owing to it. Returning the
unsold goods covered by trust receipt to the bank is not a compliance with the
obligation under the letter of credit. Hence, the turning over of the unsold goods to the
bank is a defense in a criminal case for estafa in relation to the trust receipt law but
not in a civil case for recovery of the amount covered by letter of credit. The bank did
not become the real owner of the unsold goods, which were turned over by the debtor.
The bank merely acquired security title over them for obligation under the letter of
credit. The debtor remains the owner of the unsold goods and holds it at his own risk
(Vintola vs. Insular Bank of Asia and America, G.R. No. L-78671, March 25, 1988).

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