SUGGESTED ANSWERS IN THE

2017 BAR EXAMINATION QUESTIONS IN

CRIMINAL LAW BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISIONS

BY:

ATTY. SALVADOR N. MOYA II, LL.M.

Managing Partner, Moya Ablola Ebarle Law Firm
Lifetime Member, IBP, Bulacan Chapter
Member, Board of Directors, Philippine Trial Lawyers, Inc.
Member, Vanguard of the Philippine Constitution Inc.
Advance, Pre-Bar, Pre-week Reviewer and Mock Bar Examiner
in
Remedial Law, UP Law Center
Pre-Bar Reviewer in Chair’s Cases (Criminal Law), Legal EDGE
Review Center
Bar Reviewer in Remedial Law, Powerhaus Review Center
Special Lecturer in Remedial Law, Villasis Law Center
Bar Reviewer in Criminal Law, Recoletos Law Center
MCLE Lecturer on Trial Advocacy
Author, The 2000 Rules of Criminal Procedure, Notes and
Cases
Bar Notes and Cases in Criminal Law
The Revised Guidelines on Continuous Trial in Criminal Cases
in Relation to
The 2000 Rules of Criminal Procedure
Bar Notes and Cases in Remedial Law
The Revised Rules of Evidence, Notes and Cases
The 1997 Rules of Civil Procedure As Amended, Notes and
Cases (Vol. 1)
Provisional Remedies and Special Civil Actions, Notes and
Cases (Vol. 2)
The Rules of Special Proceedings, Notes and Cases
Cross-Examination as a Science and Not an Art (The Contrarian
System)
Professor, Tarlac State University College of Law in Remedial
Law Review, Evidence,
Criminal Procedure, Election Law, Environmental Law, and
Conflict of Laws
Professor, New Era University College of Law in Civil
Procedure,
Criminal Procedure and Remedial Law Review
Professor, San Sebastian College-Recoletos, Institute of Law,
Manila
in Criminal Law Review and Remedial Law Review
Professor, University of the East College of Law in Remedial
Law Review Professor, Bulacan State University College of Law
in Remedial Law Review I
and Criminal Procedure
 I.

Tonito, an 8-year-old boy, was watching a free concert at the

Luneta Park with his father Tony. The child stood on a chair to be
able to see the performers on the stage. Juanito, a 10-year-old boy,
who was also watching the concert, could not see much of the
performance on the stage because Tonito was blocking his line of
sight by standing on the chair. Using his elbow, Juanito strongly
shoved Tonito to get a good view of the stage. The shove caused
Tonito to fall to the ground. Seeing this, Tony struck Juanito on the
head with his hand and caused the boy to fall and to hit his head
on a chair. Tony also wanted to strangle Juanito but the latter's
aunt prevented him from doing so. Juanito sustained a lacerated
wound on the head that required medical attendance for 10 days.

Tony was charged with child abuse in violation of Sec. 10(a), in

relation to Sec. 3(b)(2), of R.A. No. 7610 (Child Abuse Law) for
allegedly doing an "act by deeds or words which debases, degrades
or demeans the intrinsic worth and dignity of a child as a human
being." In his defense, Tony contended that he had no intention to
maltreat Juanito, much less to degrade his intrinsic worth and
dignity as a human being.

(a) Distinguish crimes mala in se from crimes mala prohibita. (3%)

(b) Was Tony criminally liable for child abuse under R.A. No. 7610?
Explain your answer. (3%)

ANSWER:

(a) mala in se, n. [Latin “evil in itself”] (17c) A crime or an act that
is inherently immoral, such as murder arson, or rape.— Also
termed malum per se. Pl. mala in se. — malum in se, adj.

“The basis for the distinction between

mala in se and mala prohibita, between what
one might call a crime and an offence — or
between what one might call a felony and a
misdemeanour, if one could modernize those
terms so that the latter was given its natural
meaning — is that crime means to the
ordinary man something that is sinful or
immoral, and an offence at worst a piece of
misbehaviour.”1

“The distinction between offenses

mala in se and offenses mala prohibita
was recognized at least as early as the

1 Patrick Devlin, The Enforcement of Morals 33 (1968).

 fifteenth century. It has been criticized
repeatedly. About a century and a half ago the
distinction was said to be one ‘not founded
upon any sound principle’ and which had
‘long since been exploded.’2 The Supreme
Court, however, has shown that it is just as
firmly entrenched today as it was in 1495.”3

malum prohibitum, n. [Latin “prohibited evil”] (18c) An act

that is a crime merely because it is prohibited by statute,
although the act itself is not necessarily immoral.
•Misdemeanors such as jaywalking and running a stoplight are
mala prohibita, as are many regulatory violations. Pl. mala
prohibita. — malum prohibitum, adj.

“Much of the criminal law that is

regulatory in character — the part of it that
deals with malum prohibitum rather than
malum in se — is based upon the . . . principle
. . . that the choice of the individual must give
way to the convenience of the many.”4

“As customarily used these phrases are

mutually exclusive. An offense malum
prohibitum is not a wrong which is prohibited,
but something which is wrong only in the
sense that it is against the law. This is
emphasized at times by such phrases as
‘malum prohibitum only’ or ‘but malum
prohibitum,’ although it is understood without
any such qualification. A failure to
understand this usage of the terms has led
some to assume that all statutory additions to
the common law of crimes are mala prohibita.
One writer emphasized his confusion by
speaking of embezzlement as malum
prohibitum. This assumption is utterly
without foundation. An act may be malum in
se although no punishment is provided by
law. If this defect is corrected by appropriate
legislation, what previously was malum in se
does not cease to be so by reason of having
been defined and made punishable by law.”5

2 Quoting Bensley v. Bignold, 5 B. & A. 335, 341, 106 Eng. Rep. 1214, 1216 (1822); other citations omitted.
3 Rollin M. Perkins & Ronald N. Boyce, Criminal Law 880 (3rd ed. 1982).
4 Patrick Devlin, The Enforcement of Morals 16 (1968).
5 Rollin M. Perkins & Ronald N. Boyce, Criminal Law 884-85 (3rd ed. 1982); See Garner, B. A. (2014). Black’s Law
Dictionary. Tenth Edition (p. 1103). St. Paul, MN: Thomson Reuters.
(b) Yes, but for less serious physical injuries and not for child
abuse. (Bongalon vs. People, 694 SCRA 12, 20 March 2013)
[Bersamin, J., First Division]. Art. 265 of the Revised Penal
Code provides that:

Art. 265. Less serious physical injuries.

— Any person who shall inflict upon
another physical injuries not described in
the preceding articles, but which shall
incapacitate the offended party for labor
for ten days or more, or shall require
medical assistance for the same period,
shall be guilty of less serious physical
injuries and shall suffer the penalty of
arresto mayor.

Whenever less serious physical injuries

shall have been inflicted with the manifest
intent to kill or offend the injured person, or
under circumstances adding ignominy to the
offense in addition to the penalty of arresto
mayor, a fine not exceeding 500 pesos shall
be imposed.

Any less serious physical injuries

inflicted upon the offender's parents,
ascendants, guardians, curators, teachers, or
persons of rank, or persons in authority, shall
be punished by prision correccional in its
minimum and medium periods, provided
that, in the case of persons in authority, the
deed does not constitute the crime of assault
upon such person.

DISCUSSION:

In the case of Bongalon vs. People, supra, the Supreme

Court, through Mr. Justice Bersamin, who delivered the opinion of
the Court said:

“Not every instance of the laying of hands on a child

constitutes the crime of child abuse under Section 10 (a)
of Republic Act No. 7610.6 Only when the laying of
hands is shown beyond reasonable doubt to be
intended by the accused to debase, degrade or

6 Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (Approved on June
17,1992).
 demean the intrinsic worth and dignity of the child
as a human being should it be punished as child
abuse. Otherwise, it is punished under the Revised
Penal Code.”

The law under which the petitioner was charged, tried and
found guilty of violating is Section 10(a), Article VI of Republic Act
No. 7610, which relevantly states:

Section 10. Other Acts of Neglect, Abuse, Cruelty or

Exploitation and other Conditions Prejudicial to the
Child’s Development. –

(a) Any person who shall commit any other acts

of child abuse, cruelty or exploitation or be responsible
for other conditions prejudicial to the child’s development
including those covered by Article 59 of Presidential
Decree No. 603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer the penalty
of prision mayor in its minimum period.

xxxx

Child abuse, the crime charged, is defined by Section 3(b) of

Republic Act No. 7610, as follows:

Section 3. Definition of terms. –

xxxx

(b) "Child Abuse" refers to the maltreatment,

whether habitual or not, of the child which includes any
of the following:

(1) Psychological and physical abuse, neglect,

cruelty, sexual abuse and emotional maltreatment;

(2) Any act by deeds or words which debases,

degrades or demeans the intrinsic worth and dignity of a
child as a human being;

(3) Unreasonable deprivation of his basic needs

for survival, such as food and shelter; or

(4) Failure to immediately give medical treatment

to an injured child resulting in serious impairment of his
growth and development or in his permanent incapacity
or death.

xxxx
 Although we affirm the factual findings of fact by the RTC and
the CA to the effect that the petitioner struck Jayson at the back with
his hand and slapped Jayson on the face, we disagree with their
holding that his acts constituted child abuse within the purview
of the above-quoted provisions. The records did not establish
beyond reasonable doubt that his laying of hands on Jayson had
been intended to debase the "intrinsic worth and dignity" of Jayson
as a human being, or that he had thereby intended to humiliate or
embarrass Jayson. The records showed the laying of hands on
Jayson to have been done at the spur of the moment and in anger,
indicative of his being then overwhelmed by his fatherly concern for
the personal safety of his own minor daughters who had just suffered
harm at the hands of Jayson and Roldan. With the loss of his self-
control, he lacked that specific intent to debase, degrade or demean
the intrinsic worth and dignity of a child as a human being that was
so essential in the crime of child abuse.

It is not trite to remind that under the well-recognized doctrine

of pro reo every doubt is resolved in favor of the petitioner as the
accused. Thus, the Court should consider all possible circumstances
in his favor.7

What crime, then, did the petitioner commit?

Considering that Jayson’s physical injury required five to seven

days of medical attention, the petitioner was liable for slight physical
injuries under Article 266(1) of the Revised Penal Code, to wit:

Article 266. Slight physical injuries and

maltreatment. — The crime of slight physical injuries
shall be punished:

1. By arresto menor when the offender has

inflicted physical injuries which shall incapacitate the
offended party for labor from one to nine days, or shall
require medical attendance during the same period.

xxxx

The penalty for slight physical injuries is arresto menor, which

ranges from one day to 30 days of imprisonment.8 In imposing the
correct penalty, however, we have to consider the mitigating
circumstance of passion or obfuscation under Article 13 (6) of the
Revised Penal Code,9 because the petitioner lost his reason and self-

7 Villanueva v. People, G.R. No. 160351, April 10, 2006, 487 SCRA 42, 58.
8 Article 27, Revised Penal Code.
9 Article 13. Mitigating circumstances. – The following are mitigating circumstances:
xxx
6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
xxx
control, thereby diminishing the exercise of his will power.10 Passion
or obfuscation may lawfully arise from causes existing only in the
honest belief of the accused.11 It is relevant to mention, too, that in
passion or obfuscation, the offender suffers a diminution of
intelligence and intent. With his having acted under the belief that
Jayson and Roldan had thrown stones at his two minor daughters,
and that Jayson had burned Cherrlyn’s hair, the petitioner was
entitled to the mitigating circumstance of passion. Arresto menor is
prescribed in its minimum period (i.e., one day to 10 days) in the
absence of any aggravating circumstance that offset the mitigating
circumstance of passion. Accordingly, with the Indeterminate
Sentence Law being inapplicable due to the penalty imposed not
exceeding one year,12 the petitioner shall suffer a straight penalty of
10 days of arresto menor.

II.

Sixteen-year-old Aliswan prodded Amethyst, his girlfriend, to remove

her clothing while they were secretly together in her bedroom late
one evening. Failing to get a positive response from her, he forcibly
undressed her. Apprehensive about rousing the attention of the
household who did not know of his presence inside her room, she
resisted him with minimal strength, but she was really sobbing in a
muffled manner. He then undressed himself while blocking- the
door. Yet, the image of a hapless and sobbing Amethyst soon brought
him to his senses, and impelled him to leave her room naked. He did
not notice in his hurry that Amante, the father of Amethyst, who was
then sitting alone on a sofa in the sala, saw him leave his daughter's
room naked.

Outside the house, the now-clothed Aliswan spotted Allesso,

Amethyst's former suitor. Knowing how Allesso had aggressively
pursued Amethyst, Aliswan fatally stabbed Allesso. Aliswan
immediately went into hiding afterwards.

Upon learning from Amethyst about what Aliswan had done to her,
an enraged Amante wanted to teach Aliswan a lesson he would never
forget. Amante set out the next day to look for Aliswan in his school.
There, Amante found a young man who looked very much like
Aliswan. Amante immediately rushed and knocked the young man
unconscious on the pavement, and then draped his body with a
prepared tarpaulin reading RAPIST AKO HUWAG TULARAN.
Everyone else in the school was shocked upon witnessing what had

10 United States v. Salandanan, et al., 1 Phil. 464, 465 (1902).

11 Reyes, Criminal Law, The Revised Penal Code, Book One (15th Edition), p. 286, citing U.S. v. Ferrer, 1 Phil. 56,
62, U.S. v. Macalintal, 2 Phil. 448, 451; and People v. Zapata, 107 Phil. 103, 109.
12 Section 2, Indeterminate Sentence Law.
just transpired, unable to believe that the timid and quiet Alisto,
Aliswan's identical twin brother, had committed rape.

(a) A criminal complaint for attempted rape with homicide was

brought against Aliswan in the Prosecutor's Office. However, after
preliminary investigation, the Investigating Prosecutor
recommended the filing of two separate informations - one for
attempted rape and the other for homicide. Do you agree with the
recommendation? Explain your answer. (3%)

(b) Before the trial court, Aliswan moved that the cases should be
dismissed because he was entitled to the exempting circumstance of
minority. Is his motion correct? Explain your answer. (3%)

(c) After receiving medical attendance for 10 days, Alisto consulted

you about filing the proper criminal complaint against Amante. What
crimes, if any, will you charge Amante with? Explain your answer.
(3%)

(d) Answering the criminal complaint filed by Alisto, Amante

contended that he had incurred no criminal liability for lack of
criminal intent on his part, his intended victim being Aliswan, not
Alisto. What is this defense of Amante, and explain if the same will
prosper? (3%)

ANSWER:

(a) I disagree with the recommendation of the Investigating

Prosecutor. The Information that should be filed is Attempted
Rape with Homicide.

Here, the real intent of Aliswan was to rape Amythest. But later
on, he desisted. The killing of Allesso was committed by
Aliswan by reason or on occasion of the attempted rape. The
factual milieu here is similar to that in the case of People vs.
Villaflores to which the Supreme Court traces the meaning of
“by reason or on occasion of rape” homicide was committed, is
not limited to the victim of the rape or attempted rape, but
includes any person so long as the victim of the homicide is
linked to the rape. (People vs. Villaflores, 669 SCRA 365,
11 April 2012) [Bersamin, J., First Division]

DISCUSSION:

In People vs. Villaflores (669 SCRA 365, 11 April 2012),

Mr. Justice Bersamin delivered the opinion of the court and traces
the meaning of “by reason or on the occasion of rape”. Thus, as
quoted in Villaflores:
 Republic Act No. 8353 (Anti-Rape Law of 1997) pertinently
provides:

Article 266-A. Rape; When and How Committed. –

Rape is committed

1) By a man who have carnal

knowledge of a woman under any of the
following circumstances:

a) Through force, threat, or

intimidation;

b) When the offended party is

deprived of reason or otherwise unconscious;

c) By means of fraudulent
machination or abuse of authority; and

d) When the offended party is under

twelve (12) years of age or is demented, even
though none of the circumstance mentioned
above be present.

x-x-x-x

Article 266-B. Penalties. – Rape under paragraph 1

of the next preceding article shall be punished by
reclusion perpetua.

xxx

When the rape is attempted and a homicide is

committed by reason or on the occasion thereof, the
penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape,

homicide is committed, the penalty shall be death.

xxx

The law on rape quoted herein thus defines and sets forth the
composite crimes of attempted rape with homicide and rape
with homicide. In both composite crimes, the homicide is
committed by reason or on the occasion of rape. As can be noted,
each of said composite crimes is punished with a single penalty, the
former with reclusion perpetua to death, and the latter with death.

The phrases by reason of the rape and on the occasion of the

rape are crucial in determining whether the crime is a composite
crime or a complex or compound crime. The phrase by reason of the
rape obviously conveys the notion that the killing is due to the rape,
the offense the offender originally designed to commit. The victim of
the rape is also the victim of the killing. The indivisibility of the
homicide and the rape (attempted or consummated) is clear and
admits of no doubt. In contrast, the import of the phrase on the
occasion of the rape may not be as easy to determine. To understand
what homicide may be covered by the phrase on the occasion of
the rape, a resort to the meaning the framers of the law intended
to convey thereby is helpful. Indeed, during the floor
deliberations of the Senate on Republic Act No. 8353, the
legislative intent on the import of the phrase on the occasion of
the rape to refer to a killing that occurs immediately before or
after, or during the commission itself of the attempted or
consummated rape, where the victim of the homicide may be a
person other than the rape victim herself for as long as the
killing is linked to the rape, became evident, viz:

Senator Enrile. x x x

I would like to find out, first of all, Mr. President,

what is the meaning of the phrase appearing in line 24,
"or on the occasion"?

When the rape is attempted or frustrated, and

homicide is committed by reason of the rape, I would
understand that. But what is the meaning of the phrase
"on the occasion of rape"? How far in time must the
commission of the homicide be considered a homicide "on
the occasion" of the rape? Will it be, if the rapists happen
to leave the place of rape, they are drunk and they killed
somebody along the way, would there be a link between
that homicide and the rape? Will it be "on the occasion"
of the rape?

Senator Shahani. x x x It will have to be linked with

the rape itself, and the homicide is committed with a very
short time lapse.

Senator Enrile. I would like to take the first

scenario, Mr. President: If the rapist enters a house, kills
a maid, and rapes somebody inside the house, I would
probably consider that as a rape "on the occasion of". Or
if the rapists finished committing the crime of rape,
and upon leaving, saw somebody, let us say, a
potential witness inside the house and kills him, that
is probably clear. But suppose the man happens to kill
somebody, will there be a link between these? What
is the intent of the phrase "on the occasion of rape"?
xxxxxx
 Senator Shahani. Mr. President, the principal
crime here, of course, is rape, and homicide is a result
of the circumstances surrounding the rape.

So, the instance which was brought up by the good

senator from Cagayan where, let us say, the offender is
fleeing the place or is apprehended by the police and
he commits homicide, I think would be examples
where the phrase "on the occasion thereof" would
apply. But the principal intent, Mr. President, is
rape.13

(b) Yes. The Motion is correct. Under Section 6 of R.A. No. 9344,
the minimum age of criminal responsibility is 18. Here,
Aliswan was only 16 at the time of the commission of the crime.
Thus, he is exempt from criminal liability. However, he will be
subjected to an intervention program, unless he/she has acted
with discernment, in which case, such child shall be subjected
to the appropriate proceedings in accordance with law.
Further, although Aliswan is exempt from criminal liability, it
does not mean that he can escape from civil liability. (Office of
the Court Administrator vs. Larida, Jr., 718 SCRA 359, 11
March 2014) [Bersamin, J., En Banc]

DISCUSSION:

In the case of Office of the Court Administrator vs. Larida,

Jr. (718 SCRA 359, 11 March 2014), the granting of a Motion to
Quash by the respondent Judge filed by minor Jayson Espirito with
RTC, Branch 18, Tagaytay City was one of the Administrative
Charges against him. While the presiding Judge was penalized for
two (2) months suspension without pay, he was absolved for the
administrative charged of the alleged receiving of a bribe in
granting the Motion to Quash without waiting for the Comment
of the Public Prosecutor. Mr. Justice Bersamin speaking for the
high court (en banc) upheld the recommendation of the Investigating
Justice assigned and said:

x-x-x-x

Jayson Espiritu, the accused in Criminal Case No. TG-

5307-06, was a minor of 15 years and 11 months at the time of
the commission of the offense charged as borne out by the copy
of his birth certificate attached to the motion to quash. He was
for that reason entitled to the quashal of the information filed against
him for being exempt from criminal liability based on Section 6 of

13 Record of the Senate (10th Congress), Individual Amendments – S. No. 950, Volume I, No. 8, August 7, 1996,
pp. 254-255.
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006),
which states as follows:

Section 6. Minimum Age of Criminal Responsibility.

- A child fifteen (15) years of age or under at the time of
the commission of the offense shall be exempt from
criminal liability. However, the child shall be subjected to
an intervention program pursuant to Section 20 of this
Act.

A child above fifteen (15) years but below eighteen

(18) years of age shall likewise be exempt from criminal
liability and be subjected to an intervention program,
unless he/she has acted with discernment, in which
case, such child shall be subjected to the appropriate
proceedings in accordance with this Act.

The exemption from criminal liability herein

established does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws. (Emphasis supplied)

x-x-x-x-x

But he cannot now be sanctioned because it is a matter of

public policy that in the absence of fraud, dishonesty or corruption,
the acts of a judge done in his judicial capacity are not subject to
disciplinary action although they are erroneous.14 Considering that
there was no fraud, dishonesty or corruption that attended the
omission of prior notice, we simply caution him against a repetition
of the omission of prior notice.

The Investigating Justice found the charge of bribery against

Judge Larida unsupported by competent evidence. We concur. The
records are bereft of the evidence that would establish the charge.
Innuendo and hearsay will not establish the accusation. We insist
that any accusation of bribery against a judicial officer should be
made upon hard and firm evidence of it. Hence, we dismiss the
charge of bribery.

(c) I will charge Amante for violation of R.A. No. 7610 in

relation to Art. 265 of the RPC. The victim Alisto was the
twin brother of Aliswan. Hence, he is also sixteen (16) years old
and a minor. The act of Amante constitutes child abuse as
he maltreated Alisto when he inflicted on him physically
with cruelty. Further, by rapping the body with prepared
tarpaulin reading RAPIST AKO HUWAG TULARAN, it

14 San Buenaventura v. Malaya, A.M. No. RTJ-91-744, August 1, 2002, 386 SCRA 17, 34; Boquiren v. Del Rosario-
Cruz, Adm. Case No. MTJ 94-894, June 2, 1995, 244 SCRA 702, 704.
 debases, degrades or demeans the intrinsic worth and
dignity of Alisto.

Considering that Alisto received medical attendance for ten (10)

days due to the injury he suffered from Amante, the latter is
also liable for Less serious physical injuries under Art. 265 of
the Revised Penal Code. (Bongalon vs. People, 694 SCRA 12,
20 March 2013) [Bersamin, J., First Division]

(d) The defense of Amante is Mistake of Fact as his intended victim

was Aliswan and not Alisto. However, this kind of defense will
not prosper as Amante acted maliciously and willfully. The act
of Amante when he knocked down Alisto and became
unconscious on the pavement, and then draped his body with
a prepared tarpaulin reading RAPIST AKO HUWAG TULARAN,
were unlawful. Moreover, the act of Amante is called error en
personae or mistake in the identity of the victim.

Further, the lack of criminal intent does not apply in case of

violation of special law in this jurisdiction. Alisto was a minor
being the twin brother of Aliswan. Thus, regardless of the lack
of criminal intent on the part of Amante, he is still criminally
liable for violation of R.A. No. 7610. Crimes punishable by
special laws, the act alone, irrespective of its motives,
constitute the offense. The act of Amante is considered as Mala
prohibita. (Bongalon vs. People, 694 SCRA 12, 20 March
2013) [Bersamin, J., First Division]

III.

Overjoyed by the award to his firm of a multi-billion government

contract for the development of an economic and tourism hub in the
Province of Blank, Mr. Gangnam allotted the amount of P100 Million
to serve as gifts for certain persons instrumental in his firm's
winning the award. He gave 50% of that amount to Governor Datu,
the official who had signed the contract with the proper authorization
from the Sangguniang Panlalawigan; 25% to Bokal Diva, the
Sangguniang Panlalawigan member who had lobbied for the award
of the project in the Sangguniang Panlalawigan; and 25% to Mayor
Dolor of the Municipality where the project would be implemented.
Governor Datu received his share through his wife, Provincial First
Lady Dee, who then deposited the amount in her personal bank
account.

Previously, upon facilitation by Bokal Diva, Mr. Gangnam concluded

an agreement with Mayor Dolor for the construction of the Blank
Sports Arena worth ₱800 Million. The project was highly overpriced
because it could be undertaken and completed for not more than
₱400 Million. For this project, Mayor Dolor received from Mr.
Gangnam a gift of ₱10 Million, while Bokal Diva got ₱25 Million.
In both instances, Bokal Diva had her monetary gifts deposited in
the name of her secretary, Terry, who personally maintained a bank
account for Bokal Diva's share in government projects.

(a) May each of the above-named individuals be held liable for

plunder? Explain your answer. (4%)

(b) Define wheel conspiracy and chain conspiracy. Is either or both

kinds existent herein? Explain your answer. (4%)

(c) What provisions of R.A. No. 3019 (Anti-Graft & Corrupt Practices
Act), if any, were violated by any of the above-named individuals,
specifying the persons liable therefor? Explain your answer. (4%)

(d) What crimes under the Revised Penal Code, if any, were
committed, specifying the persons liable therefor? Explain your
answer. (4%)

ANSWER:

(a) Not all of them could be held liable for plunder based on the
elements of R.A. No. 7080 as amended by R.A. No. 7659. Only
the following individuals could be held liable for plunder:

1) Governor Datu who received the

amount of P50,000,000.00 after he signed the
contract in favor of the firm of Mr. Gangnam.
His wife Provincial First Lady Dee is also liable
as the amount given to Governor Datu, his
husband, was deposited in her account. She
is considered as co-conspirator;
2) Bokal Diva is also liable for
plunder. He was the one who lobbied for the
award of the Project to the firm of Mr.
Gangnam in the Sanguniang Panlalawigan.
He received 25% of or P25,000,000.00 and
another P25,000,000.00 in another project of
Mr. Gangnam in the construction of an
overpriced Blank Sports Arena in the
Municipality to which Dolor is the Mayor. The
aggregate amount has a total of
P50,000,000.00. Further, Terry, the
Secretary of Bokal Diva is also liable as co-
conspirator. The amount was deposited in her
bank account.

DISCUSSION:

To successfully mount a criminal prosecution for plunder, the

State must allege and establish the following elements, namely:
 1. That the offender is a public officer who
acts by herself or in connivance with members of her
family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;

2. That the offender amasses, accumulates or

acquires ill-gotten wealth through a combination or
series of the following overt or criminal acts:

(a) through misappropriation,

conversion, misuse, or malversation of
public funds or raids on the public
treasury;

(b) by receiving, directly or

indirectly, any commission, gift, share,
percentage, kickback or any other form of
pecuniary benefits from any person and/or
entity in connection with any government
contract or project or by reason of the
office or position of the public officer;

(c) by the illegal or fraudulent

conveyance or disposition of assets
belonging to the National Government or any
of its subdivisions, agencies or
instrumentalities of Government owned or
controlled corporations or their subsidiaries;

(d) by obtaining, receiving or

accepting directly or indirectly any shares
of stock, equity or any other form of
interest or participation including the
promise of future employment in any
business enterprise or undertaking;

(e) by establishing agricultural,

industrial or commercial monopolies or other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests; or

(f) by taking advantage of official

position, authority, relationship,
connection or influence to unjustly enrich
himself or themselves at the expense and
to the damage and prejudice of the Filipino
people and the Republic of the Philippines;
and,
 3. That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least P50,000,000.00.15

The corpus delicti of plunder is the amassment,

accumulation or acquisition of ill-gotten wealth valued at not
less than P50,000,000.00. The failure to establish the corpus
delicti should lead to the dismissal of the criminal prosecution.
(Macapagal-Arroyo vs. People, 797 SCRA 241, 19 July 2016)
[Bersamin, J., En Banc]

(b) In Macapagal-Arroyo vs. People (797 SCRA 241, 19 July

2016), citing Estrada v. Sandiganbayan,16 the Court, thru Mr.
Justice Bersamin, recognized two nuances of appreciating
conspiracy as a means to commit a crime, the wheel
conspiracy and the chain conspiracy.

The wheel conspiracy occurs when there is a single person

or group (the hub) dealing individually with two or more other
persons or groups (the spokes). The spoke typically interacts with
the hub rather than with another spoke. In the event that the
spoke shares a common purpose to succeed, there is a single
conspiracy. However, in the instances when each spoke is
unconcerned with the success of the other spokes, there are multiple
conspiracies.17

An illustration of wheel conspiracy wherein there is only one

conspiracy involved was the conspiracy alleged in the information
for plunder filed against former President Estrada and his co-
conspirators. Former President Estrada was the hub while the
spokes were all the other accused individuals. The rim that enclosed
the spokes was the common goal in the overall conspiracy, i.e., the
amassing, accumulation and acquisition of ill-gotten wealth.

On the other hand, the American case of Kotteakos v. United

States18 illustrates a wheel conspiracy where multiple conspiracies
were established instead of one single conspiracy. There, Simon
Brown, the hub, assisted 31 independent individuals to obtain
separate fraudulent loans from the US Government. Although all the
defendants were engaged in the same type of illegal activity, there
was no common purpose or overall plan among them, and they were
not liable for involvement in a single conspiracy. Each loan was an
end in itself, separate from all others, although all were alike in
having similar illegal objects. Except for Brown, the common figure,
no conspirator was interested in whether any loan except his own

15 Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 394, 432.
16 G.R. No. 148965, February 26, 2002, 377 SCRA 538, 556.
17 Contemporary Criminal law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R., Sage Publication,
California, USA, 2013, p. 195.
18 328 U.S. 750 (1946).
went through. Thus, the US Supreme Court concluded that there
existed 32 separate conspiracies involving Brown rather than one
common conspiracy.

The chain conspiracy recognized in Estrada v. Sandiganbayan

exists when there is successive communication and cooperation in
much the same way as with legitimate business operations between
manufacturer and wholesaler, then wholesaler and retailer, and then
retailer and consumer.

This involves individuals linked together in a vertical chain to

achieve a criminal objective. Illustrative of chain conspiracy was that
involved in United States v. Bruno,19 of the US Court of Appeals for
the Second Circuit. There, 88 defendants were indicted for a
conspiracy to import, sell, and possess narcotics. This case involved
several smugglers who had brought narcotics to retailers who, in
turn, had sold the narcotics to operatives in Texas and Louisiana for
distribution to addicts. The US Court of Appeals for the Second
Circuit ruled that what transpired was a single chain conspiracy in
which the smugglers knew that the middlemen must sell to retailers
for distribution to addicts, and the retailers knew that the middle
men must purchase drugs from smugglers. As reasoned by the court,
"the conspirators at one end of the chain knew that the unlawful
business would not and could not, stop with their buyers; and those
at the other end knew that it had not begun with their sellers." Each
conspirator knew that "the success of that part with which he was
immediately concerned was dependent upon success of the whole."
This means, therefore, that "every member of the conspiracy
was liable for every illegal transaction carried out by other
members of the conspiracy in Texas and in Louisiana."

Once the State proved the conspiracy as a means to commit a

crime, each co-conspirator is as criminally liable as the others, for
the act of one is the act of all. A co-conspirator does not have to
participate in every detail of the execution; neither does he have to
know the exact part performed by the co-conspirator in the execution
of the criminal act.20 Otherwise, the criminal liability of each accused
is individual and independent.

(c) Governor Datu, his wife, First Lady Dee, Bokal Diva, her
Secretary Terry and Mayor Dolor are all liable for violation of Section
3(b) of R.A. No. 3019. Section 3(b) of Republic Act No. 3019,
punished any public officer for "[d]irectly 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

19 105 F.2d 921 (2d Cir. 1939).

20 People v. Del Castillo, G.R. No. 169084, January 18, 2012, 663 SCRA 226, 247.
law." (People vs. Sandiganbayan, First Division and Third Division,
712 SCRA 359, 11 December 2013) [Bersamin, J., First Division]

DISCUSSION:

In the case of People vs. Sandiganbayan, First Division and

Second Division supra, it was held that:

The Sandiganbayan correctly applied the

restrictive meaning of the term transaction as
used in Section 3(b) of Republic Act No. 3019
adopted in Soriano, Jr. v. Sandiganbayan in its questioned
resolution dismissing Criminal Case No. SB-08-CRM-0265, the
Sandiganbayan relied on the ruling in Soriano, Jr. v.
Sandiganbayan, in which the principal issue was whether or not the
preliminary investigation of a criminal complaint conducted by
petitioner Soriano, Jr., then a Fiscal, was a "contract or transaction"
as to bring the complaint within the ambit of Section 3(b) of Republic
Act No. 3019, which punished any public officer for "[d]irectly 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."
The Soriano, Jr. Court ruled in the negative, and pronounced:

It is obvious that the investigation conducted by the

petitioner was not a contract. Neither was it a transaction
because this term must be construed as analogous to the term
which precedes it. A transaction, like a contract, is one which
involves some consideration as in credit transactions and this
element (consideration) is absent in the investigation conducted by
the petitioner.

In the light of the foregoing, we agree with the petitioner that it

was error for the Sandiganbayan to have convicted him of violating
Sec. 3 (b) of R.A. No. 3019. (Emphasis supplied)

The State now argues, however, that the Sandiganbayan

thereby committed grave abuse of discretion resulting to lack or in
excess of jurisdiction for applying the interpretation of the
term transaction in Soriano, Jr. considering that the
term transaction should be construed more liberally, and positing
that Soriano, Jr. was already abandoned by the Court, citing for that
purpose the rulings in Mejia v. Pamaran,82 Peligrino v.
People,83 and Chang v. People.84

We disagree with the petitioner, and find for the respondents.

 First of all, the interpretation in Soriano, Jr. of the
term transaction as used in Section 3(b) of Republic Act No. 3019 has
not been overturned by the Court.

In Mejia v. Pamaran, decided en banc on April 15, 1988, Mejia

had demanded and received money from some persons involved in
certain cases in a trial court where Mejia was then serving as the
branch clerk of court in consideration of a promise that she would
help in getting a favorable judgment for them. The issue was whether
or not Mejia could be convicted under the information that alleged
that she had demanded a certain amount, although the
Sandiganbayan found that the amount was different from that
charged in the information. The Court dismissed her petition, and
ruled that "[i]n a prosecution under the foregoing provision of the
Anti-Graft Law the value of the gift, money or present, etc. is
immaterial xxx [w]hat is penalized is the receipt of any gift, present,
share, percentage, or benefit by a public officer in connection with a
contract or transaction with the Government, wherein the public
officer has to intervene in his official capacity." The Court nowhere
ruled on the proper interpretation of the term transaction.

In Peligrino v. People, decided on August 13, 2001, Peligrino,

an examiner of the Bureau of Internal Revenue, was convicted of
violating Section 3(b) of Republic Act No. 3019 for demanding the
amount of ₱200,000.00 from the complainant in connection with the
latter’s tax liabilities. Peligrino’s defense was that he did not
"demand" the money, but the money was just given to him. He
argued that he had only informed the complainant of his tax
deficiencies, and that the complainant had then requested the
reduction of the amount claimed as his tax deficiencies. The Court
found no merit in Peligrino’s argument. The ruling had nothing to do
with the interpretation of the term transaction.

Chang v. People, decided on July 21, 2006, was a case in

which two persons – Chang and San Mateo – were convicted of
violating Section 3(b) of Republic Act No. 3019 after being found to
have received ₱125,000.00 in consideration of their issuance of a
Certificate of Examination to the effect that the complainant had "no
tax liability" in favour of the municipality, notwithstanding that it
had not settled with them on their assessed deficiency tax of
₱494,000.00. Chang and San Mateo contended that the charge had
resulted from an involuntary contact whereby complainant Magat
had simply tossed to them the brown envelope; that there had been
no conspiracy between them; and that what had transpired had been
an instigation, not an entrapment. In affirming their conviction, the
Court did not touch on the proper interpretation of the
term transaction as used in Section 3(b) of Republic Act No. 3019.

The three rulings the State has cited here did not overturn the
interpretation made in Soriano, Jr. of the term transaction as used in
Section 3(b) of Republic Act No. 3019 because the proper
interpretation of the term was clearly not decisive in those cases. On
the contrary, in the later ruling in Merencillo v. People,85 promulgated
in 2007, the Court reiterated the restrictive interpretation given
in Soriano, Jr. to the term transaction as used in Section 3(b) of
Republic Act No. 3019 in connection with a differentiation between
bribery under the Revised Penal Code and the violation of Section
3(b) of Republic Act No. 3019 by holding that the latter is "limited
only to contracts or transactions involving monetary
consideration where the public officer has the authority to
intervene under the law."

And, secondly, it does not help the State any that the
term transaction as used in Section 3(b) of Republic Act No. 3019 is
susceptible of being interpreted both restrictively and liberally,
considering that laws creating, defining or punishing crimes and
laws imposing penalties and forfeitures are to be construed strictly
against the State or against the party seeking to enforce them, and
liberally against the party sought to be charged.86

Clearly, the Sandiganbayan did not arbitrarily, or whimsically,

or capriciously quash the information for failing to properly state the
fourth element of the violation of Section 3(b) of Republic Act No.
3019.

(d) Mr. Gangnam is liable for corruption of public officials

under Art. 212 of the Revised Penal Code. The elements of
corruption of public officials under Article 212 of the Revised
Penal Code, that are present in this case are:

1. That the offender makes offers or promises, or give gifts

or presents to a public officer; and

2. That the offers or promises are made or the gifts or

presents are given to a public officer under
circumstances that will make the public officer liable for
direct bribery or indirect bribery. (Disini vs.
Sandiganbayan, First Division, 705 SCRA 459, 11
September 2013)[Bersamin, J. First Division]

DISCUSSION:

The allegations in the information for corruption of public

officials, if hypothetically admitted, would establish the essential
elements of the crime. The information stated that: (1) Disini made
an offer and promise, and gave gifts to President Marcos, a public
officer; and (2) in consideration of the offers, promises and gifts,
President Marcos, in causing the award of the contracts to Burns
& Roe and Westinghouse by taking advantage of his position and
in committing said act in relation to his office, was placed under
circumstances that would make him liable for direct bribery.39

The second element of corruption of public officers simply

required the public officer to be placed under circumstances, not
absolute certainty, that would make him liable for direct or indirect
bribery. Thus, even without alleging that President Marcos received
or accepted Disini’s offers, promises and gifts – an essential element
in direct bribery – the allegation that President Marcos caused the
award of the contracts to Burns & Roe and Westinghouse sufficed to
place him under circumstances of being liable for direct bribery.

IV.

Maita was the object of Solito's avid sexual desires. Solito had
attempted many times to entice Maita to a date in bed with him but
Maita had consistently refused. Fed up with all her rejections, Solito
abducted Maita around 7 p.m. one night. With his cohorts, Solito
forced Maita into a Toyota lnnova and drove off with her to a green-
painted house situated in a desolate part of the town. There, Solito
succeeded in having carnal knowledge of Maita against her will.

Meanwhile, the police authorities were tipped off that at 11:30 p.m.
on that same night Solito would be selling marijuana outside the
green-painted house. Acting on the tip, the PNP station of the town
formed a buy-bust team with PO2 Masahol being designated the
poseur buyer. During the buy-bust operation, Solito opened the
trunk of the Toyota lnnova to retrieve the bag of marijuana to be sold
to PO2 Masahol. To cut the laces that he had tied the bag with, Solito
took out a Swiss knife, but his doing so prompted PO2 Masahol to
effect his immediate arrest out of fear that he would attack him with
the knife. PO2 Masahol then confiscated the bag of marijuana as well
as the Toyota lnnova.

(a) Two informations were filed against Solito in the RTC - one for
forcible abduction with rape, raffled to Branch 8 of the RTC; the
other for illegal sale of drugs, assigned to Branch 29 of the RTC.
Was Solito charged with the proper offenses based on the
circumstances? Explain your answer. (5%)

(b) While the Prosecution was presenting its evidence in Branch 29,
Branch 8 convicted Solito. Immediately after the judgment of
conviction was promulgated, Solito filed in both Branches a motion
for the release of the Toyota lnnova. He argued and proved that he
had only borrowed the vehicle from his brother, the registered
owner. Branch 8 granted the motion but Branch 29 denied it. Were
the two courts correct in their rulings? Explain your answer. (5%)
(a) The charge of Forcible Abduction with Rape filed with RTC,
Branch 8 is not correct. The principal objective of the
abduction of Maita by Solito is to rape her. Thus, forcible
abduction is absorbed in the crime of rape. (People vs.
Sabadlab, 668 SCRA 237, 14 March 2012) [Bersamin, J.,
First Division]

DISCUSSION:

In People vs. Sabadlab supra, it was held that:

Although forcible abduction was seemingly

committed, we cannot hold him guilty of the complex crime of
21

forcible abduction with rape when the objective of the abduction

was to commit the rape. Under the circumstances, the rape
absorbed the forcible abduction.22

The penalty of reclusion perpetua was correctly prescribed.

Article 266-A and Article 266-B of the Revised Penal Code, as
amended by Republic Act No. 8353,23 respectively define and punish
simple rape as follows:

Article 266-A. Rape; When and How Committed. –

Rape is committed –

1) By a man who shall have carnal knowledge of

a woman under any of the circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason

or otherwise unconscious;

c) By means of fraudulent machinations or

grave abuse of authority; and

d) When the offended party is under twelve (12)

years of age or is demented, even though none of the
circumstances mentioned above be present.

Article 266-B. Penalties. – Rape under paragraph 1

of the next preceding article shall be punished
by reclusion perpetua.

21 Article 342, Revised Penal Code, provides:

Article 342. Forcible abduction. – The abduction of any woman against her will and with lewd designs
shall be punished by reclusion temporal.
The same penalty shall be imposed in every case, if the female abducted be under twelve years of age.
22 Garces v. People, G.R. No. 173858, July 17, 2007, 527 SCRA 827; People v. Muros, G.R. No. 142511, February 16,
2004, 423 SCRA 69; People v. Egan, G.R. No. 139338, May 28, 2002, 382 SCRA 326; People v. Mejorada, G.R. No.
102705, July 30, 1993, 224 SCRA 837, 852; People v. Godines, G.R. No. 93410, May 7, 1991, 196 SCRA 765, 773.
23 Effective October 22, 1997.
 On the other hand, the charged against Solito should have
been illegal possession of Marijuana as there was NO illegal sale
that transpired between him and PO2 Masahol. (People vs.
Manansala, 695 SCRA 70, 3 April 2013) [Bersamin, J., First
Division]

DISCUSSION:

ILLEGAL POSSESSION IS DEEMED INCLUDED IN ILLEGAL SALE

OF PROHIBITED DRUGS

For sure, there have been many occasions in which the Court
has found an accused charged with the illegal sale of marijuana in
violation of Section 4 guilty instead of the illegal possession of
marijuana in violation of Section 8. In the oft-cited case of People v.
Lacerna,24 the Court held as prevailing the doctrine that the illegal
sale of marijuana absorbs the illegal possession of marijuana, except
if the seller was also apprehended in the illegal possession of another
quantity of marijuana not covered by or not included in the illegal
sale, and the other quantity of marijuana was probably intended for
some future dealings or use by the accused. The premise used in
Lacerna was that the illegal possession, being an element of the
illegal sale, was necessarily included in the illegal sale. The Court
observed thusly:

In People vs. Manzano, the Court identified the elements of

illegal sale of prohibited drugs, as follows:

(1) the accused sold and delivered a prohibited

drug to another, and

(2) he knew that what he had sold and delivered

was a dangerous drug. Although it did not expressly state
it, the Court stressed delivery, which implies prior
possession of the prohibited drugs. Sale of a prohibited
drug can never be proven without seizure and
identification of the prohibited drug, affirming that
possession is a condition sine qua non.

It being established that illegal possession is an element of and

is necessarily included in the illegal sale of prohibited drugs, the
Court will thus determine appellant’s culpability under Section 8.

From the penal provision under consideration and from the

cases adjudicated, the elements of illegal possession of prohibited
drugs are as follows:

(a) the accused is in possession of an item or

object which is identified to be a prohibited drug;

24 G.R. No. 109250, September 05, 1997, 278 SCRA 561.

 (b) such possession is not authorized by law; and

(c) the accused freely and consciously possessed

the prohibited drug.

In all the convictions premised on the situation described in

Lacerna, however, the involvement of a single object in both the
illegal sale as the crime charged and the illegal possession as the
crime proved is indispensable, such that only the prohibited drugs
alleged in the information to be the subject of the illegal sale is
considered competent evidence to support the conviction of the
accused for the illegal possession. As such, the illegal possession is
either deemed absorbed by or is considered a necessary element of
the illegal sale. On the other hand, any other illegal substance found
in the possession of the accused that is not part of the subject of the
illegal sale should be prosecuted under a distinct and separate
information charging illegal possession; otherwise, the fundamental
right of the accused to be informed of the nature and cause of the
accusation against him would be flagrantly violated.

x-x-x-x-x

The CA correctly declared that the illegal possession of

marijuana was "a crime that is necessarily included in the crime of
drug pushing or dealing, for which the accused have been charged
with." The right of Manansala to be informed of the nature and cause
of the accusation against him enunciated in Section 14(2), Article III
of the 1987 Constitution25 was not violated simply because the
information had precisely charged him with selling, delivering, giving
away and distributing more or less 750 grams of dried marijuana
leaves. Thereby, he was being sufficiently given notice that he was
also to be held to account for possessing more or less 750 grams of
dried marijuana leaves. As Lacerna and similar rulings have
explained, the crime of illegal sale of marijuana defined and
punished under Section 4 of Republic Act No. 6425, as amended,
implied the prior possession of the marijuana. As such, the crime of
illegal sale included or absorbed the crime of illegal possession. The
rule is that when there is a variance between the offense charged in
the complaint or information, and that proved or established by the
evidence, and the offense as charged necessarily includes the offense
proved, the accused shall be convicted of the offense proved included
in that which is charged.26 According to Section 5, Rule 120, Rules

25 Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable
26 Section 4, Rule 120, Rules of Court (1988).
of Court (1985), the rule then applicable, an offense charged
necessarily includes that which is proved, when some of the essential
elements or ingredients of the former, as this is alleged in the
complaint or information, constitute the latter.

(b) Yes, the ruling of both courts, are correct. RTC, Branch 8
correctly ruled the release of the vehicle. The crime of rape was
already terminated leading to the conviction of Solito. Further,
the confiscation or retention of the said vehicle has no more
purpose even on appeal.

Whereas, the Order of denial of release of the Motor Vehicle by

RTC, Branch 29 was also correct. (PDEA vs. Brodett, 658
SCRA 399, 28 September 2011)[Bersamin, J.]

DISCUSSION:

In PDEA vs. Brodett, supra, it was held that:

Objects of lawful commerce confiscated in the course of an

enforcement of the Comprehensive Dangerous Drugs Act of 2002
(Republic Act No. 9165) that are the property of a third person are
subject to be returned to the lawful owner who is not liable for the
unlawful act. But the trial court may not release such objects
pending trial and before judgment.

The legal provision applicable to the confiscation and forfeiture

of the proceeds or instruments of the unlawful act, including the
properties or proceeds derived from illegal trafficking of dangerous
drugs and precursors and essential chemicals, is Section 20 of R.A.
No. 9165, which pertinently provides as follows:

Section 20. Confiscation and Forfeiture of the

Proceeds or Instruments of the Unlawful Act, Including
the Properties or Proceeds Derived from the Illegal
Trafficking of Dangerous Drugs and/or Precursors and
Essential Chemicals. – Every penalty imposed for the
unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or
manufacture of any dangerous drug and/or controlled
precursor and essential chemical, the cultivation or
culture of plants which are sources of dangerous drugs,
and the possession of any equipment, instrument,
apparatus and other paraphernalia for dangerous drugs
including other laboratory equipment, shall carry with it
the confiscation and forfeiture, in favor of the
government, of all the proceeds derived from unlawful
act, including, but not limited to, money and other assets
 obtained thereby, and the instruments or tools with
which the particular unlawful act was committed, unless
they are the property of a third person not liable for
the unlawful act, but those which are not of lawful
commerce shall be ordered destroyed without delay
pursuant to the provisions of Section 21 of this Act.

After conviction in the Regional Trial Court in the

appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and
forfeiture of all the proceeds of the offense and all the
assets and properties of the accused either owned or held
by him or in the name of some other persons if the same
shall be found to be manifestly out of proportion to
his/her lawful income: Provided, however, That if the
forfeited property is a vehicle, the same shall be
auctioned off not later than five (5) days upon order of
confiscation or forfeiture.

During the pendency of the case in the Regional

Trial Court, no property, or income derived therefrom,
which may be confiscated and forfeited, shall be
disposed, alienated or transferred and the same shall be
in custodia legis and no bond shall be admitted for the
release of the same.

The proceeds of any sale or disposition of any

property confiscated or forfeited under this Section shall
be used to pay all proper expenses incurred in the
proceedings for the confiscation, forfeiture, custody and
maintenance of the property pending disposition, as well
as expenses for publication and court costs. The proceeds
in excess of the above expenses shall accrue to the Board
to be used in its campaign against illegal drugs.27

There is no question, for even PDEA has itself pointed out, that
the text of Section 20 of R. A. No. 9165 relevant to the confiscation
and forfeiture of the proceeds or instruments of the unlawful act is
similar to that of Article 45 of the Revised Penal Code, which states:

Article 45. Confiscation and Forfeiture of the

Proceeds or Instruments of the Crime. – Every penalty
imposed for the commission of a felony shall carry with it
the forfeiture of the proceeds of the crime and the
instruments or tools with which it was committed.

Such proceeds and instruments or tools shall be

confiscated and forfeited in favor of the Government,
unless they be the property of a third person not
 liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.

The Court has interpreted and applied Article 45 of the Revised

Penal Code in People v. Jose,27 concerning the confiscation and
forfeiture of the car used by the four accused when they committed
the forcible abduction with rape, although the car did not belong to
any of them, holding:

xxx Article 45 of the Revised Penal Code bars the

confiscation and forfeiture of an instrument or tool used
in the commission of the crime if such "be the property of
a third person not liable for the offense," it is the sense of
this Court that the order of the court below for the
confiscation of the car in question should be set aside
and that the said car should be ordered delivered to the
intervenor for foreclosure as decreed in the judgment of
the Court of First Instance of Manila in replevin case. xxx

Such interpretation is extended by analogy to Section 20,

supra. To bar the forfeiture of the tools and instruments belonging
to a third person, therefore, there must be an indictment charging
such third person either as a principal, accessory, or accomplice.
Less than that will not suffice to prevent the return of the tools and
instruments to the third person, for a mere suspicion of that person’s
participation is not sufficient ground for the court to order the
forfeiture of the goods seized.28

However, the Office of the City Prosecutor proposed through its

Comment and Objection submitted on August 27, 2009 in the
RTC that the delivery to the RTC of the listed personal effects for
safekeeping, to be held there throughout the duration of the trial,
would be to enable the Prosecution and the Defense to exhaust their
possible evidentiary value. The Office of the City Prosecutor further
objected to the return of the car because it appeared to be the vehicle
used in the transaction of the sale of dangerous drugs, and, as such,
was the instrument in the commission of the violation of Section 5
of R.A. No. 9165.

On its part, PDEA regards the decision of the CA to be not in

accord with applicable laws and the primordial intent of the framers
of R. A. No. 9165, and contends that the car should not be released
from the custody of the law because it had been seized from accused
Brodett during a legitimate anti-illegal operation. It argues that the
Motion to Return Non-Drug Evidence did not intimate or allege that
the car had belonged to a third person; and that even if the car had
belonged to Ms. Brodett, a third person, her ownership did not ipso
facto authorize its release, because she was under the obligation to

27 No. L-28232, February 6, 1971, 37 SCRA 450.

28 I Reyes, The Revised Penal Code, 15th Edition, pp. 638-639.
prove to the RTC that she had no knowledge of the commission of
the crime. It insists that the car is a property in custodia legis and
may not be released during the pendency of the trial.

We agree with PDEA and the Office of the City Prosecutor.

We note that the RTC granted accused Brodett’s Motion To

Return Non-Drug Evidence on November 4, 2009 when the criminal
proceedings were still going on, and the trial was yet to be completed.
Ordering the release of the car at that point of the proceedings was
premature, considering that the third paragraph of Section 20,
supra, expressly forbids the disposition, alienation, or transfer of any
property, or income derived therefrom, that has been confiscated
from the accused charged under R.A. No. 9165 during the pendency
of the proceedings in the Regional Trial Court. Section 20 further
expressly requires that such property or income derived therefrom
should remain in custodia legis in all that time and that no bond
shall be admitted for the release of it.

Indeed, forfeiture, if warranted pursuant to either Article 45 of

the Revised Penal Code and Section 20 of R.A. No. 9165, would be a
part of the penalty to be prescribed. The determination of whether or
not the car (or any other article confiscated in relation to the
unlawful act) would be subject of forfeiture could be made only when
the judgment was to be rendered in the proceedings. Section 20 is
also clear as to this.

The status of the car (or any other article confiscated in relation
to the unlawful act) for the duration of the trial in the RTC as being
in custodia legisis primarily intended to preserve it as evidence and
to ensure its availability as such. To release it before the judgment
is rendered is to deprive the trial court and the parties access to it
as evidence. Consequently, that photographs were ordered to be
taken of the car was not enough, for mere photographs might not fill
in fully the evidentiary need of the Prosecution. As such, the RTC’s
assailed orders were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction for being in contravention
with the express language of Section 20 of R.A. No. 9165.

Nonetheless, the Court need not annul the assailed orders of

the RTC, or reverse the decision of the CA. It appears that on August
26, 2011 the RTC promulgated its decision on the merits in Criminal
Case No. 09-208 and Criminal Case No. 09-209, acquitting both
Brodett and Joseph and further ordering the return to the accused
of all non-drug evidence except the buy-bust money and the genuine
money, because:

The failure of the prosecution therefore to establish

all the links in the chain of custody is fatal to the case at
bar. The Court cannot merely rely on the presumption of
 regularity in the performance of official function in view
of the glaring blunder in the handling of the corpus delicti
of these cases. The presumption of regularity should bow
down to the presumption of innocence of the accused.
Hence, the two (2) accused BRODETT and JOSEPH
should be as it is hereby ACQUITTED of the crimes herein
charged for Illegal Selling and Illegal Possession of
Dangerous Drugs.

WHEREFORE, premises considered, for failure of

the prosecution to prove the guilt of the accused beyond
reasonable doubt, RICHARD BRODETT y SANTOS and
JORGE JOSEPH y JORDANA are ACQUITTED of the
crimes charged in Criminal Case Nos. 09-208 and 09-
209.

The subject drug evidence is ordered transmitted to

the Philippine Drug Enforcement Agency (PDEA) for
proper disposition. All the non-drug evidence except the
buy bust money and the genuine money are ordered
returned to the accused.

The genuine money used in the buy bust operation

as well as the genuine money confiscated from both
accused are ordered escheated in favor of the government
and accordingly transmitted to the National Treasury for
proper disposition.29

The directive to return the non-drug evidence has overtaken

the petition for review as to render further action upon it
superfluous. Yet, the Court seizes the opportunity to perform its duty
to formulate guidelines on the matter of confiscation and forfeiture
of non-drug articles, including those belonging to third persons not
liable for the offense, in order to clarify the extent of the power of the
trial court under Section 20 of R.A. No. 9165. 30 This the Court must
now do in view of the question about the confiscation and forfeiture
of non-drug objects being susceptible of repetition in the future.31

We rule that henceforth the Regional Trial Courts shall

comply strictly with the provisions of Section 20 of R.A. No.
9165, and should not release articles, whether drugs or non-
drugs, for the duration of the trial and before the rendition of
the judgment, even if owned by a third person who is not liable
for the unlawful act.

29 Judgment dated August 26, 2011 rendered in Criminal Case No. 09-208 and Criminal Case No. 09-209.
30 Salonga v. Cruz Paño, No. L-59524, February 18, 1985, 134 SCRA 438, 463; David v. Macapagal-Arroyo, G.R. No.
171396, May 3, 2006, 489 SCRA 160, 215.
31 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 215; Albaña v. Commission on
Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98; Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383
SCRA 577;Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
 V.

To aid in the rebuilding and revival of Tacloban City and the

surrounding areas that had been devastated by the strongest
typhoon. to hit the country in decades, the Government and other
sectors, including NGOs, banded together in the effort. Among the
NGOs was Ba..,gon Waray, Inc. (BaWI), headed by Mr. Jose Ma.
Gulang, its President and CEO. BaWI operated mainly as a social
amelioration and charitable institution. For its activities in the
typhoon-stricken parts of Leyte Province, BaWI received funds from
all sources, local and foreign, including substantial amounts from
legislators, local government officials and the EU. After several
months, complaints were heard about the very slow distribution of
relief goods and needed social services by BaWI.

The COA reported the results of its audit to the effect that at least
P10 Million worth of funds coming from public sources channeled to
BaWI were not yet properly accounted for. The COA demanded
reimbursement but BaWI did not respond.

Hence, Mr. Gulang was criminally charged in the Office of the

Ombudsman with malversation of public funds and failure of
accountable officer to render accounts as respectively defined and
punished by Art. 217 and Art. 218 of the Revised Penal Code. He was
also· charged with violation of Sec. 3(e) of R.A. No. 3019 for causing
undue injury to the Government.

In his defense, Mr. Gulang mainly contended that he could not be

held 1iable under the various· charges because he was not a public
officer.

(a) Who is a public officer? (2%)

(b) Discuss whether the crimes charged against Mr. Gulang are
proper. Explain your answer. (3%)

(a) Art. 203. Who are public officers. — For the purpose of applying
the provisions of this and the preceding titles of this book, any
person who, by direct provision of the law, popular election or
appointment by competent authority, shall take part in the
performance of public functions in the Government of the
Philippine Islands, of shall perform in said Government or in
any of its branches public duties as an employee, agent or
subordinate official, of any rank or class, shall be deemed to be
a public officer. (Codal Provision Question)

(b) The question was a reverse to the case of Mesina vs.

People (758 SCRA 659, 17 June 2015)[Bersamin, J., First Division].
 The crime charged against Mr. Gulang for Violation of Article
217 and Art. 218 of the RPC are improper. Also for violation of
Section 3(e) of R.A. No. 3019. The number one element for
malversation is that, the offender must be a public officer. This is
absent in this case.

Whereas, the elements of Section 3(e) of R.A. No. 3019 which

are also absent in this case are as follows:

In every prosecution for the violation of Section 3 (e) of R.A. No.

3019, the State must prove the following essential elements, namely:

1. The accused is a public officer

discharging administrative, judicial or
official functions;

2. He must have acted with manifest

partiality, evident bad faith, or gross
inexcusable negligence in the discharge
of his functions and;

3. His action caused any undue injury to

any party, including the Government, or
gave any private party unwarranted
benefits, advantage or preference in the
discharge of his functions. (Giangan vs.
People, 768 SCRA 221, 26 August
2015)[Bersamin, J.]

DISCUSSION:

The crime of malversation of public funds charged herein is

defined and penalized under Article 217 of the Revised Penal Code,
as amended, as follows:

Article 217. Malversation of public funds or

property. - Presumption of malversation. - Any public
officer who, by reason of the duties of his office, is
accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or
shall consent, or through abandonment or negligence,
shall permit any other person to take such public funds
or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such
funds or property shall suffer:

xxxx
 4. The penalty of reclusion temporal in its
medium and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than twenty-
two thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.

In all cases, persons guilty of malversation shall

also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property
embezzled.

The failure of a public officer to have duly

forthcoming any public funds or property with which he
is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such
missing funds or property to personal use. (As amended
by R.A. No. 1060)

The crime of malversation of public funds has the following

elements, to wit:

(a) that the offender is a public officer;

(b) that he had the custody or control of funds or

property by reason of the duties of his office;

(c) that the funds or property were public funds

or property for which he was accountable; and

(d) that he appropriated, took, misappropriated

or consented or, through abandonment or negligence,
permitted another person to take them.

The elements of the crime charged were duly established

against the petitioner.

The Prosecution proved, firstly, that the petitioner was a public

officer with the position of Local Treasurer Officer I of Caloocan City;
secondly, that by reason of his position, he was tasked to collect fees
and taxes regularly levied by the Mini City Hall, including market
fees, miscellaneous fees, real property taxes, and the subject patubig
collection; and, thirdly, that all of the fees and taxes collected were
unquestionably public funds for which he was accountable.

As to the fourth element of misappropriation, the petitioner did

not rebut the presumption that he had misappropriated the patubig
collection to his personal use. He had earlier feigned ignorance of
having received the patubig collection when he phoned Ms. Baclit to
tell her that he did not receive the collection. He still insisted that he
had not received the sum from Ms. Baclit when the City Treasurer
summoned them both. His denial continued until the next day when
City Mayor Malonzo himself asked them both about the matter. Only
after the petitioner's vault was finally opened did he declare that the
collection was intact inside his vault. Even then, the actual amount
found therein was short by 1!37,876.98. Conformably with Article
217 of the Revised Penal Code, supra, the failure of the petitioner to
have the patubig collection duly forthcoming upon demand by the
duly authorized officer was prima facie evidence that he had put
such missing fund to personal use. Although the showing was merely
prima facie, and, therefore, rebuttable, he did not rebut it,
considering that he not only did not account for the collection upon
demand but even steadfastly denied having received it up to the time
of the inspection of the sealed vault. Under the circumstances, he
was guilty of the misappropriation of the collection.

Malversation is committed either intentionally or by negligence.

The dolo or the culpa is only a modality in the perpetration of the
felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is still committed; hence, a conviction
is proper. All that is necessary for a conviction is sufficient proof that
the accused accountable officer had received public funds or
property, and did not have them in his possession when demand
therefor was made without any satisfactory explanation of his failure
to have them upon demand. For this purpose, direct evidence of the
personal misappropriation by the accused is unnecessary as long as
he cannot satisfactorily explain the inability to produce or any
shortage in his accounts. Accordingly, with the evidence adduced by
the State being entirely incompatible with the petitioner's claim of
innocence, we uphold the CA's affirmance of the conviction, for,
indeed, the proof of his guilt was beyond reasonable doubt. (Mesina
vs. People, 758 SCRA 659, 17 June 2015)[Bersamin, J., First
Division]

VI.

Answer with brief explanations the following queries:

(a) If the slightest penetration of the female genitalia consummates

rape by carnal knowledge, how does the accused commit attempted
rape by carnal knowledge? (2%)

(b) What crime is committed by a capataz who enrolls two fictitious

names in the payroll and collects their supposed daily wages every
payday? (2%)

(c) What is now the age of doli incapax in the Philippines? (2%)
(d) Why is there no crime of frustrated serious physical injuries? (2%)

(a) It is the failure of the accused to touch the labias, that will
amount only to attempted rape by Carnal Knowledge.

DISCUSSION:

In objective terms, carnal knowledge, the other essential

element in consummated statutory rape, does not require full
penile penetration of the female. The Court has clarified in People v.
Campuhan32 that the mere touching of the external genitalia by a
penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge. All that is necessary to reach the
consummated stage of rape is for the penis of the accused
capable of consummating the sexual act to come into contact
with the lips of the pudendum of the victim. This means that the
rape is consummated once the penis of the accused capable of
consummating the sexual act touches either labia of the pudendum.

As the Court has explained in People v. Bali-balita,33 the

touching that constitutes rape does not mean mere epidermal
contact, or stroking or grazing of organs, or a slight brush or a scrape
of the penis on the external layer of the victim’s vagina, or the mons
pubis, but rather the erect penis touching the labias or sliding into
the female genitalia. Accordingly, the conclusion that touching the
labia majora or the labia minora of the pudendum constitutes
consummated rape proceeds from the physical fact that the labias
are physically situated beneath the mons pubis or the vaginal
surface, such that for the penis to touch either of them is to attain
some degree of penetration beneath the surface of the female
genitalia. It is required, however, that this manner of touching
of the labias must be sufficiently and convincingly established.
(People vs. Reyes, 701 SCRA 455, 17 July 2013)[Bersamin, J.,
First Division]

(c) Section 6 of Republic Act No. 9344 (Juvenile Justice and

Welfare Act of 2006), xxx states as follows:

Section 6. Minimum Age of Criminal

Responsibility. - A child fifteen (15) years of
age or under at the time of the commission
of the offense shall be exempt from criminal
liability. However, the child shall be subjected
to an intervention program pursuant to
Section 20 of this Act.

32 G.R. No. 129433, March 30, 2000, 329 SCRA 270, 280.
33 G.R. No. 134266, September 15, 2000, 340 SCRA 450, 465.
 A child above fifteen (15) years but
below eighteen (18) years of age shall likewise
be exempt from criminal liability and be
subjected to an intervention program, unless
he/she has acted with discernment, in which
case, such child shall be subjected to the
appropriate proceedings in accordance with
this Act.

The exemption from criminal liability

herein established does not include
exemption from civil liability, which shall be
enforced in accordance with existing laws.
(Emphasis supplied) (Office of the Court
Administrator vs. Larida, Jr., 718 SCRA
359, 11 March 2014)[Bersamin, J.]

* doli incapax – incapable of criminal intention or malice; not

of the age of discretion; not possessed of sufficient discretion
and intelligence to distinguish between right and wrong to the
extent of being criminally responsible for his actions.34

VII.

Bernardo was enraged by his conviction for robbery by Judge

Samsonite despite insufficient evidence. Pending his appeal,
Bernardo escaped in order to get even with Judge Samsonite.
Bernardo learned that the judge regularly slept in his mistress'
house every weekend. Thus, he waited for the judge to arrive on
Saturday evening at the house of his mistress. It was about 8:00 p.m.
when Bernardo entered the house of the mistress. He found the
judge and his mistress having coffee in the kitchen and engaging in
small talk. Without warning, Bernardo stabbed the judge at least 20
times. The judge instantly died.

Prosecuted and tried, Bernardo was convicted of direct assault with

murder. Rule with reasons whether or not the conviction for direct
assault with murder was justified, and whether or not the trial court
should appreciate the following aggravating circumstances against
Bernardo, to wit: (1) disregard of rank and age of the victim, who was
68 years old; (2) dwelling; (3) nighttime; (4) cruelty; and (5) quasi-
recidivism. (10%)

VIII.

34 Black, H. C. (1979). Black’s Law Dictionary. Fifth Edition (p. 433). St. Paul, Minn.: West Publishing Co.
Porthos made a sudden turn on a dark street, and his Rolls-Royce
SUV bumped the rear of a parked Cadillac Sedan inside which
Aramis was then taking a nap. Angered by the violent Impact, Aramis
alighted and confronted Porthos who had also alighted. Aramis
angrily and repeatedly shouted at Porthos: Putang Ina mo! Porthos,
displaying fearlessness, aggressively shouted back at Aramis: Wag
kang magtapang-tapangan dyan, papatayin kita! Without saying
anything more, Aramis drew his gun from his waist and shot Porthos
in the leg. Porthos' wound was not life threatening.

(a) What are the kinds of unlawful aggression, and which kind was
displayed in this case? Explain your answer. (3%)

(b) Standing trial for frustrated murder, Aramis pleaded self-defense.

The Prosecution's contention was that the plea of self-defense
applied only to consummated killings. Rule, with explanations, on
the tenability of Aramis' claim of self-defense, and on the
Prosecution's contention. (3%)

(c) Porthos insisted that the element of treachery was present. To

rule out treachery, Aramis asserted that both he and Porthos were
then facing and confronting each other when he fired the shot. Rule,
with reasons, on the respective contentions. (3%)

(a) Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful
aggression. (People vs. Dulin, 760 SCRA 413, 29 June
2015)[Bersamin, J.]

There was neither material nor imminent unlawful aggression

here. On the part of Porthos, while Aramis displayed
fearlessness and aggressively shouted back at him, there was
no physical force or weapon that might endanger his life. In
other words, it was not life threatening.

It was Aramis who was the aggressor here in view of his act in
actually shooting Phortos, although on his leg only. Hence, we
could conclude that there was no intent to kill.

* Actual or material unlawful aggression means an attack with

physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury.
(People vs. Dulin, 760 SCRA 413, 29 June 2015; People vs.
Nugas, 661 SCRA 159, 23 November 2011)[Bersamin, J.,
First Division)

* Imminent unlawful aggression means an attack that is

impending or at the point of happening; it must not consist in
 a mere threatening attitude, nor must it be merely imaginary,
but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and
making a motion as if to attack). Imminent unlawful aggression
must not be a mere threatening attitude of the victim, such as
pressing his right hand to his hip where a revolver was
holstered, accompanied by an angry countenance, or like
aiming to throw a pot. (People vs. Dulin, 760 SCRA 413, 29
June 2015; People vs. Nugas, 661 SCRA 159, 23 November
2011)[Bersamin, J., First Division)

(b) Aramis cannot plead that his act in shooting Porthos was self-
defense. There was no element of unlawful aggression as a
condition sine qua non on the part of Porthos.

The accidental bumping of his car by Porthos cannot be

considered as enough provocation, neither was the verbal
tussle between them. No person can be killed or injured by act
of shouting fearlessly against each other. I cannot also adhere
to the prosecution’s contention that self- defense applies only
to consummated killings. Self- defense applies even in
frustrated murder as the law did not qualify its application.
(People vs. Dulin, 760 SCRA 413, 29 June 2015; People vs.
Nugas, 661 SCRA 159, 23 November 2011)[Bersamin, J.,
First Division)

DISCUSSION:

The accused who pleads self-defense admits the authorship of

the crime. The burden of proving self-defense rests entirely on him,
that he must then prove by clear and convincing evidence the
concurrence of the following elements of self-defense, namely:

(1) unlawful aggression;

(2) reasonable necessity of the means employed

to prevent or repel the unlawful aggression; and

(3) lack of sufficient provocation on the part of

the person defending himself.35

The most important of all the elements is unlawful

aggression,36 which is the condition sine qua non for upholding self-
defense as a justifying circumstance. Unless the victim committed
unlawful aggression against the accused, self-defense, whether
complete or incomplete, should not be appreciated, for the two other

35 Rimano v. People, G.R. No. 156567, November 27, 2003, 416 SCRA 569, 576.
36 People v. Dolorido, G.R. No. 191721, January 12, 2011, 639 SCRA 496, 503.
essential elements of self-defense would have no factual and legal
bases without any unlawful aggression to prevent or repel.

Unlawful aggression as the condition sine qua non for

upholding self-defense is aptly described in People v. Nugas,37 as
follows:

Unlawful aggression on the part of the victim is the

primordial element of the justifying circumstance of self-
defense. Without unlawful aggression, there can be no
justified killing in defense of oneself. The test for the
presence of unlawful aggression under the
circumstances is whether the aggression from the victim
put in real peril the life or personal safety of the person
defending himself; the peril must not be an imagined or
imaginary threat. Accordingly, the accused must
establish the concurrence of three elements of unlawful
aggression, namely:

(a) there must be a physical or material attack or

assault;

(b) the attack or assault must be actual, or, at

least, imminent; and

(c) the attack or assault must be unlawful.

(c) There is treachery when the offender commits any of the crimes
against persons, employing means and methods or forms in
the execution thereof which tend to directly and specially
ensure its execution, without risk to himself arising from the
defense which the offended party might make.

Two conditions must concur in order for treachery to be

appreciated, namely: one, the assailant employed means,
methods or forms in the execution of the criminal act which give
the person attacked no opportunity to defend himself or to
retaliate; and two, said means, methods or forms of execution
were deliberately or consciously adopted by the assailant.

There is treachery here because of the element of surprise.

Porthos has no chance to defend himself when Aramis
suddenly drew his gun and shoot Porthos although they were
facing each other.

There can be no self-defense unless the victim committed

unlawful aggression against the person who resorted to self
defense. (People vs. Mediado, 641 SCRA 366, 2 February
2011)[Bersamin, J., First Division]

37 G.R. No. 172606, November 23, 2011, 661 SCRA 159, 167-168.
 IX.

During the nationwide transport strike to protest the phase out

of old public utility vehicles, striking jeepney drivers Percy,
Pablo, Pater and Sencio, each armed with guns, hailed several
MMDA buses then providing free transport to the stranded public
to stop them from plying their routes. They later on
commandeered one of the buses without allowing any of the
passengers to alight, and told the driver to bring the bus to
Tanay, Rizal.

Upon reaching a remote area in Tanay, Percy, Pablo, Pater and

Sencio forcibly divested the passengers of their cash and
valuables. They ordered the passengers to leave thereafter.
Then, they burned the bus. When a tanod of the barangay of the
area came around to Intervene, Pater fired at him, instantly
killing him.

After Percy, Pablo, Pater and Sencio were arrested, the police
authorities recommended them to be charged with the following
crimes, to wit: (1) carnapping; (2) robbery, (3) direct assault with
homicide; (4) kidnapping; and (5) arson.

State your legal opinion on the recommendation of the police

authorities on the criminal liabilities incurred by Percy, Pablo,
Pater and Sencio. (10%)

Sammy Peke was convicted of a violation of R.A. No. 123456 for

selling fake books. The law prescribes the penalty of prision
correccional, a divisible penalty whose minimum period is six
months and one day to two years and four months; medium period
is two years, four months and one day to four years and two months;
and maximum period is four years, two months and one day to six
years.

At arraignment, Sammy Peke pleads guilty to the crime charged.

(a) Explain how the Indeterminate Sentence Law is applied in crimes

punished by special laws. (3%)

(b) Supposing the trial judge imposes a straight penalty of

imprisonment for one year, is the penalty correct in the context of
the Indeterminate Sentence Law? Explain your answer. (3%)
(a) The application of the Indeterminate Sentence Law is
mandatory both for those crimes punishable by the Revised
Penal Code and Special Laws.

DISCUSSION:

The requirement of imposing an indeterminate sentence in all

criminal offenses whether punishable by the Revised Penal Code or
by special laws, with definite minimum and maximum terms, as the
Court deems proper within the legal range of the penalty specified by
the law must, therefore, be deemed mandatory. (Bautista vs. People,
608 SCRA 355, 16 December 2009)[Bersamin, J., First Division]

Thus, Section 1 of the Indeterminate Sentence Law, as

amended, provides:

Section 1. Hereafter, in imposing a

prison sentence for an offense punished by
the Revised Penal Code, or its amendments,
the court shall sentence the accused to an
indeterminate sentence the maximum term of
which shall be that which, in view of the
attending circumstances, could be properly
imposed under the rules of the said Code, and
the minimum which shall be within the range
of the penalty next lower to that prescribed by
the Code for the offense; and if the offense is
punished by any other law, the court shall
sentence the accused to an indeterminate
sentence, the maximum term of which
shall not exceed the maximum fixed by
said law and the minimum shall not be less
than the minimum term prescribed by the
same.

The CA justifiably deemed it necessary to correct the

indeterminate sentence. Under Section 1, supra, the minimum of the
indeterminate sentence is a penalty “within the range of the penalty
next lower to that prescribed by the [Revised Penal] Code for the
offense,” and the maximum is “that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code.” Considering that the clear objective of the Indeterminate
Sentence Law is to have the convict serve the minimum penalty
before becoming eligible for release on parole pursuant to the
Indeterminate Sentence Law, both the minimum and the maximum
penalties must be definite, not ranging. This objective cannot be
achieved otherwise, for determining when the convict would be
eligible for release on parole would be nearly impossible if the
minimum and the maximum were as indefinite as the RTC fixed the
indeterminate sentence. Indeed, that the sentence is an
indeterminate one relates only to the fact that such imposition would
leave the period between the minimum and the maximum penalties
indeterminate “in the sense that he may, under the conditions set
out in said Act, be released from serving said period in whole or in
part.” (Fransdilla vs. People, 756 SCRA 164, 20 April 2015)
[Bersamin, J., First Division].

(b) The straight penalty the CA imposed was contrary to

the Indeterminate Sentence Law, whose Section 1 requires that the
penalty of imprisonment should be an indeterminate sentence.
According to Spouses Bacar v. Judge de Guzman, Jr.,38 the
imposition of an indeterminate sentence with maximum and
minimum periods in criminal cases not excepted from the coverage
of the Indeterminate Sentence Law pursuant to its Section 239 is
mandatory, viz:

The need for specifying the minimum

and maximum periods of the indeterminate
sentence is to prevent the unnecessary and
excessive deprivation of liberty and to
enhance the economic usefulness of the
accused, since he may be exempted from
serving the entire sentence, depending upon
his behavior and his physical, mental, and
moral record. The requirement of imposing
an indeterminate sentence in all criminal
offenses whether punishable by
the Revised Penal Code or by special laws,
with definite minimum and maximum
terms, as the Court deems proper within
the legal range of the penalty specified by
the law must, therefore, be deemed
mandatory.

Indeed, the imposition of an indeterminate sentence is

mandatory. For instance, in Argoncillo v. Court of Appeals,40 three
persons were prosecuted for and found guilty of illegal fishing (with
the use of explosives) as defined in Section 33, Presidential Decree
No. 704, as amended by Presidential Decree No. 1058, for which the
prescribed penalty was imprisonment from 20 years to life
imprisonment. The trial court imposed on each of the accused a
38 A.M. No. RTJ-96-1349, April 18, 1997, 271 SCRA 328.
39 Section 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life
imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual
delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been
granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose
maximum term of imprisonment does not exceed one year; nor to those already sentenced by final judgment
at the time of approval of this Act, except as provided in Section 5 hereof. (as amended by Act No. 4225, Aug. 8,
1935)
40 G.R. No. 118806, July 10, 1998, 292 SCRA 313, 330-331.
straight penalty of 20 years imprisonment, and the CA affirmed the
trial court. On appeal, however, this Court declared the straight
penalty to be erroneous, and modified it by imposing imprisonment
ranging from 20 years, as minimum, to 25 years, as maximum.
(Batistis vs. People, 608 SCRA 335, 16 December 2009.)

XI.

In his homily, Fr. Chris loudly denounced the many

extrajudicial killings committed by the men in uniform. Policeman
Stone, then attending the mass, was peeved by the denunciations of
Fr. Chris. He immediately approached the priest during the homily,
openly displayed his firearm tucked in his waist, and menacingly
uttered at the priest: Father, may kalalagyan kayo kung hindi kayo
tumigil. His brazenness terrified the priest, who cut short his homily
then and there. The celebration of the mass was disrupted, and the
congregation left the church in disgust over the actuations of
Policeman Stone, a co-parishioner.

Policeman Stone was subsequently charged.

The Office of the Provincial Prosecutor is now about to resolve

the case, and is mulling on what to charge Policeman Stone with.

May Policeman Stone be properly charged with either or both

of the following crimes, or, if not, with what proper crime?

(a) Interruption of religious worship as defined and punished

under Art. 132 of the Revised Penal Code; and/or

(b) Offending the religious feelings as defined and punished

under Art. 133 of the Revised Penal Code.

Explain fully your answers. (8%)