Compilation of Criminal Law Bar Questions
(2016) Yes, Art. 247 (death or physical injuries inflicted under exceptional
Title VIII – Crimes Against Persons
1. Jojo and Felipa are husband and wife. Believing that his work as a
lawyer is sufficient to provide for the needs of their family, Jojo
convinced: Felipa to be a stay-at-home mom and care for their
children. One day, Jojo arrived home earlier than usual and caught
Felipa in the act of having sexual inter course with their female nanny,
Alma, in their matrimonial bed. In a fit of rage, Jojo retrieved his
revolver from inside the bedroom cabinet and shot Alma, immediately
killing her.
(A) Is Art. 247 (death or physical injuries inflicted under exceptional
circumstances) of the Revised Penal Code (RPC) applicable in this case
given that the paramour was of the same gender as the erring
spouse? (2.5%)
(B) Is Felipa liable for adultery for having sexual relations with Alma?
(2.5%)
SUGGESTED ANSWER
No. Art. 247 of the Revised Penal Code is not applicable.
Under the Revised Penal Code, for Art. 247 to apply, the offender must
catch his or her spouse in the act of committing sexual intercourse with
another person. In People of the Philippines v. Marciano Gonzales (G.R.
No. 46310, October 31, 1939), the Supreme Court held that to avail of the
privilege under Art. 247, the accused should surprise his wife in the “very
act if sexual intercourse”. Sexual intercourse gener ally presupposes the
penetration of the man’s sexual organ into that of a woman’s. In this case,
the paramour was of the same gender as the erring spouse. As such, there
is legally, no sexual intercourse to speak of, hence, Art. 247 is not
applicable.
ALTERNATIVE ANSWER
circumstances) of the Revised Penal Code is applicable.
The requisites of Art. 247 are: (1) a legally married person surprises his
spouse in the act of committing sexual intercourse with another person; (2)
he or she kills any or both of them or inflicts upon any or both of them any
serious physical injury “while in the act” or immediately thereafter; and (3)
he has not promoted or facilitated the prostitution of his wife or that he or
she has not consented to the infidelity of the other spouse. All the foregoing
requisites are present in the case at hand. It is a given in the problem that
Jojo caught Felipa and Alma in the “act of sexual intercourse.” The law did
not qualify that the other person with whom the spouse be caught
committing sexual intercourse be “male or female.” Hence, the gender of
the paramour, Alma, being of the same gender as the erring spouse,
Felipa, is immaterial, The answer given presupposes that Jojo and Felipa
are legally married.
(B) No. Under Article 333 of the Revised Penal Code, adultery is
committed by any married woman who shall have sexual intercourse with a
“man” not her husband. Thus, Felipa in having homosexual intercourse
with Alma, a “woman,” is not committing adultery.
2. Charges d’affairės Volvik of Latvia suffers from a psychotic
disorder after he was almost assassinated in his previous
assignment. One day, while shopping in a mall, he saw a group of
shoppers whom he thought were the assassins who were out to kill
him. He asked for the gun of his escort and shot ten (10) people and
wounded five (5) others before he was subdued. The wounded
persons required more than thirty (30) days of medical treatment.
What crime or crimes, if any, did he commit? Explain. (5%)
SUGGESTED ANSWER

Volvik committed five frustrated murders for the unwounded victims and
five frustrated murders for the wounded victims. Treachery is present since
the sudden attack rendered the victims defenseless. The nature of the
weapon used in attacking the victims and extent of the wounds
sustained.by the five victims showed intent to kill. His psychotic condition is
not an exempting circumstance of insanity in the absence of showing that
there is a complete deprivation of intelligence in accordance with the
cognition test. However, he is immune from criminal prosecution. Since the
position of Volvik as charges de affaires is diplomatic, he is vested with
blanket diplomatic immunity from criminal suit (Minucher v. Hon. CA, G.R.
No. 142396, February 11, 2003).
3. Angelino, a Filipino, is a transgender who underwent gender
reassignment and had implants in different parts of her body. She
changed her name to Angelina and was a finalist in the Miss Gay
International. She came back to the Philippines and while she was
walking outside her home, she was abducted by Max and Razzy who
took her to a house in the province. She was then placed in a room
and Razzy forced her to have sex with him at knife’s point. After the
act, it dawned upon Razzy that Angelina is actually a male. Incensed,
Razzy called Max to help him beat Angelina. The beatings that
Angelina received eventually caused her death.
What crime or crimes, if any, were committed? Explain. (5%)
SUGGESTED ANSWER
Razzy is liable for kidnapping with homicide. Abducting Angelino is not
forcible abduction since the victim in this crime must be a woman. Gender
reassignment will not make him a woman within the meaning of Article 342
of the Revised Penal Code. There is no showing, moreover, that at the time
abduction is committed with lewd design; hence, his abduction constitutes
illegal detention. Since Angelino was killed in the course of the detention,
the crime constitutes kidnapping and serious illegal detention with homicide
under Article 267. Having sexual intercourse with Angelino is not rape
through sexual inter course since the victim in this crime must be a woman.
This act is not rape through sexual assault, either, Razzy did not insert his
penis into the anal orifice or mouth of Angelino or an instrument or object
into anal orifice or genital orifice, hence, this act constitutes acts of
lasciviousness under Article 336. Since the acts of lasciviousness is
committed by reason or occasion of kidnapping, it will be integrated into
one and indivisible felony of kidnapping with homicide (People v. De Leon,
G.R. No. 179943, June 26, 2009; People v. Jugueta, G.R. No. 202124,
April 05, 2016; People v. Laog, G.R. No. 178321, October 5, 2011; People
v. Larronaga, G.R. Nos. 138874-75, February 3, 2004).
Max is liable for kidnapping with homicide as an accomplice since he
concurred in the criminal design of Razzy in depriving Angelino his liberty
and supplied the former material aid in an efficacious way by helping him
beat the latter.
4. Braulio invited Lulu, his 11-year old stepdaughter; inside the
master bedroom. He pulled out a knife and threatened her with harm
unless she submitted to his desires. He was touching her chest and
sex organ when his wife caught him in the act. The prosecutor is
unsure whether to charge Braulio for acts of lasciviousness under
Art. 336 of the RPC; for lascivious conduct under RA 7610 (Special
Protection against Child Abuse, Exploitation and Discrimination Act);
or for rape under Art. 266-A of the RPC.
What is the crime committed? Explain. (5%)
SUGGESTED ANSWER
The acts of Braulio of touching the chest and sex organ of Lulu, who is
under 12 years of age, are merely acts of lasciviousness and not attempted
rape because intent to have sexual intercourse is not clearly shown
(People v. Banzuela, G.R. No. 202060, December 11, 2013). To be held
liable of attempted rape, it must be shown that the erectile penis is in the
position to penetrate (Cruz v. People, G.R. No. 166441, October 8, 2014)
or the offender actually commenced to force his penis into the victim’s
sexual organ (People v. Banzuela, supra).
The same acts of touching the chest and sex organ of Lulu under
psychological coercion or influence of her stepfather, Braulio, constitutes
sexual abuse under Section 5 (b) of RA No. 7610 (People v. Opiana, G.R.
No. 133922, February 12, 2001),
Since the requisites for acts of lasciviousness under Article 336 of the
Revised Penal Code are met, in addition to the requisites for sexual abuse
under Section 5 of RA No. 7610, and the victim is under 12 years of age,
Braulio shall be prosecuted for acts of lasciviousness under Revised Penal
Code but the penalty imposable is that prescribed by RA No. 7610
(Amployo v. People, G.R. No. 157718, April 26, 2005). Under Section 5 (6)
of RA No: 7610, when the victim (child subjected to sexual abuse) is under
12 years of age, the perpetrators shall be prosecuted (for acts of lascivi
ousness) under Article 336 of the Revised Penal Code: Provided, That the
penalty for lascivious conduct when the victim is under 12 years of age
shall be reclusion temporal in its medium period.
5. Lina worked as a housemaid and yaya of the one week old son of
the spouses John and Joana. When Lina learned that her 70-year old
mother was seriously ill, she asked John fora cash advance of
P20,000.00, but the latter refused. In anger, Lina gagged the mouth of
the child with stockings, placed him in a box sealed it with masking
tape, and placed the box in the attic. Lina then left the house and
asked her friend Fely to demand a “P20,000.00 ransom for the release
of the spouses’ child to be paid within twenty-four hours. The
spouses did not pay the ransom. After a couple. of days, John
discovered the box in the attic with his child already dead. According
to the autopsy report, the child died of asphyxiation barely minutes
after the box was sealed.
What crime or crimes, if any, did Lina and Fely commit? Explain. (5%)
SUGGESTED ANSWER
Lina is liable for murder. Gagging the mouth of the child with stockings,
placing him in a box, sealing it with masking tape, and placed the box in the
attic were only methods employed by the defendant in committing : murder
qualified by the circumstance of treachery (People v. Lora, G.R. No. L-
49430, March 30, 1982). Taking advantage of the defenseless condition of
the victim by reason of his tender age in killing him is treachery (People v. .
Fallorina, G.R. No. 137347, March 4, 2004). She is not liable for kidnapping
with murder, the essence of which is the actual confinement or restraint of
the victim or the deprivation of his liberty. In this case, the victim was not
deprived of liberty since he immediately died. The demand for ransom did
not convert the offense into kidnapping with murder. The defendant was
well aware that the child would be suffocated to death in a few moments
after she left: The demand for ransom is only a part of the diabolic scheme
of the defendant to murder the child, to conceal his body and then demand
money before the discovery of the cadaver (People v.Lora; supra). Fely is
not liable for murder as principal or accomplice. Since Fely did not
participate in the actual killing of the child, she can only be held liable for
murder as principal or accomplice on the basis of conspiracy or community
of design. But in this case, there is neither conspiracy nor community of
design to commit murder since her criminal intention pertains to kidnapping
for ransom. Moreover, her participation of demanding ransom for the
release of the child is not connected to murder Neither is Fely liable for
kidnapping for ransom. Her criminal mind to assist Lina in committing
kidnapping for ransom is not constitutive of a felony. Mens rea without
actus reus is not a crime.