06-criminal-law-bar-q-a-1999-2017-pdf.pdf

The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers

Alterna@ve Circumstances .................................... 19

Criminal Law Bar Questions and Answers (1999-2017)

Absolutory Causes .................................................19 Entrapment v. Ins@ga@on ..........................................19 Liabili@es of Principals, Accomplices and Accessories .. 19 Principal ................................................................19

Table of Contents

Conspiracy .............................................................20

CRIMINAL LAW 1 .............................................................1

Accomplice ............................................................21

Fundamental and General Principles in Criminal Law 1 .

Accessory ..............................................................22

No Common Law Crimes .............................................2

Corpus Delic@ ............................................................23

No Crime When No Law Punishes It ...........................2 Limita@ons of Congress in Enac@ng Penal Laws ..........2

Principles, Classifica@on, Dura@on and Effects of Penal@es ....................................................................23

Characteris@cs of Criminal Law ...................................2

Applica@on of Penal@es ............................................24

Territoriality ................................................................2

Con@nuing Crime ...................................................... 26

Generality ...................................................................3

Execu@on and Service of Penal@es ........................... 27

Laws of Preferen@al Applica@on .................................3

Ex@nc@on of Criminal Liabili@es ................................ 27

The Principle of Dubio Pro Reo ...................................4

Prescrip@on of crime ................................................. 29

Applicability, Effec@vity and History of Penal Code (and Penal Laws) .........................................................4

Civil Liabili@es in Criminal Cases ...............................30 CRIMINAL LAW 2 ...........................................................31

Schools of Thought of Criminal Law ............................4 Criminal Liabili@es and Felonies ..................................4

Crimes against Na@onal Security and Laws of Na@on ... 31

Culpa ...........................................................................4

Crimes against Public Order ......................................33

Crimes Malum In se and Crimes Malum Prohibitum .. 4

Crimes against Public Interest ...................................38

Grave, Less Grave and Light Penal@es .........................5

Crimes against Public Morals .................................... 41

Relevance of Mo@ve ................................................... 5

Crimes Against Persons ............................................. 46

Rules on Criminal Liability ...........................................5

Crimes Against Personal Liberty and Security ...........58

Proximate Cause .....................................................5

Crimes Against Property ...........................................62

Impossible Crime ....................................................8

Crimes Against Chas@ty ............................................77

Stages of a Felony .......................................................9

SPECIAL PENAL LAWS ....................................................83

Circumstances Affec@ng Criminal Liabili@es ................ 9

CRIMINAL LAW 1

Jus@fying Circumstances .......................................10

Fundamental and General Principles in Criminal Law

Exemp@ng Circumstances .....................................13

Assume that you are a member of the legal staff of Senator Salcedo who wants to file a bill about imprisonment at the National Penitentiary in Muntinlupa. He wants to make the State prison a revenue earner for the country through a law providing for premium accommodations for prisoners (other than those under maximum security status) whose wives are allowed conjugal weekend

Mi@ga@ng Circumstances ......................................14 Aggrava@ng Circumstances ...................................15

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers visits, and for those who want long-term premium accommodations.

YES. Strictly speaking, human rights violations cannot be considered crimes in the Philippines. However, if the acts constitute violations of customary international law, they may be considered violations of Philippine law (Section 8, Article II, Constitution.) Also, the acts may constitute elements of offenses penalized under Philippine laws, like kidnapping/illegal detention – serious or slight violation of R.A. No. 7610, or R.A. No. 7877 – the Anti-Sexual Harassment Act.

For conjugal weekenders, he plans to rent out rooms with hotellike amenities at rates equivalent to those charged by 4-star hotels; for long-term occupants, he is prepared to offer room and board with special meals in air conditioned single-occupancy rooms, at rates equivalent to those charged by 3-star hotels. What advice will you give the Senator from the point of view of criminal law, taking into account the purpose of imprisonment (7%) and considerations of ethics and morality (3%)? (10% total points) ’13-Q11

Limitations of Congress in Enacting Penal Laws Distinguish between ex post facto law and bill of attainder. (3%) ’15-Q2

SUGGESTED ANSWER: I would advise Senator Salcedo to forgo and permanently abandon his proposed bill as it will result in economic inequality in the field of criminal justice. The bill runs afoul with the equal protection clause of the 1987 Constitution. The equal protection clause in the Constitution does not merely bar the creation of inequalities but commands as well the elimination of existing inequalities.

Answer: Ex posto facto law which makes an innocent act a crime after the act was committed. It is a Latin phrase which means “from something done afterwards.” It could also be a law which aggravates a crime or makes it greater than when it was committed, or which changes the punishment and inflicts a greater penalty than the law governing the crime when committed.

Additionally, the purpose of imposing penalties, which is to secure justice, retribution, and reformation, will be defeated and put to naught if the bill’s program or scheme should eventually become a law.

A bill of attainder is a law which inflicts punishment on a named individual or a group of individuals without judicial trial.

No Common Law Crimes

Ex posto facto law pertains to the act while a bill of attainder pertains to a named individual or group or to members of a group.

Are there common law crimes in our jurisdiction? ’88 – Q1b There are none. The rule is “nullum crimen, nulla poena sine lege”, there is no crime if there is no law punishing it.

What are the limitations upon congress to enact penal laws? ’88 – Q1a; ’12 – Q3b

No Crime When No Law Punishes It

The limitations upon the power of congress to enact penal laws are as follows: 1. Prohibition against ex post facto or bill of attainder; 2. Prohibition against imposition of cruel and unusual punishment; and 3. Prohibition against violation of due process and equal protection of the law.

The maxim "Nullum crimen nula poena sine lege" means that: ’11 – Q12 (A) the act is criminal at the time of its commission and recognized as such at the time of its commission but the penalty therefor is prescribed in a subsequently enacted law. (B) the act is criminal and punished under and pursuant to common law. (C) there is a crime for as long as the act is inherently evil. (D) crime is a product of the law.

Characteristics of Criminal Law What are the characteristics of criminal law? ’88 – Q1c The characteristics of criminal law are as follows: 1. GENERALITY – That the law is binding upon all persons who reside or sojourn in the Philippines, irrespective of age, sex, color, creed or personal circumstances. 2. TERRITORIALITY – That the law is applicable to all crimes committed within the limits of Philippine territory, which includes its atmosphere and maritime zone (Art. 2) 3. PROSPECTIVITY – That the law does not have retroactive effect, except if it favors the offender unless he is a habitual delinquent (Art. 22) Article 2 of the RPC, however, provides for an exception to: “Treaty stipulations or by law of preferential application.”

Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cutting of their victims’ appendages, stuffing their torsos, legs, body parts into oil drums and bullet-riddled vehicles and later on burying theses oil drums, vehicles with the use of backhoes and other earth-moving machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the “Heinous Crimes Law.” The prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of the Information, how will you pass the recommendation. ’10 – Q4 The CHR is correct in describing the crimes committed as “heinous crimes”, as defined in the preamble of the “Heinous Crimes Law” (Republic Act No. 7659), despite the passage of R.A. No. 9346 prohibiting the imposition of the death penalty. However, the “Heinous Crimes Law” does not define crimes; it is only an amendatory law increasing the penalty for the crimes specified therein as heinous, to a maximum of death. Thus, the heinous crimes committed shall be prosecuted under the penal law they are respectively defined and penalized, such as the Revised Penal Code as the case may be. The circumstances making the crimes heinous may be alleged as qualifying or generic aggravating, if proper. The crime shall be designated as defined and punished under the penal law violated and the penalty shall be reclusion perpetua without the benefit of parole or life imprisonment without the benefit of parole, as the case may be in lieu of the death penalty.

Territoriality Ando, an Indonesian national who just visited the Philippines, purchased a ticket for a passenger vessel bound for Hong Kong. While on board the vessel, he saw his mortal enemy Iason, also an Indonesian national, seated at the back portion of the cabin and who was busy reading a newspaper. Ando stealthily approached Iason and when he was near him, Ando stabbed and killed Iason. The vessel is registered in Malaysia. The killing happened just a few moments after the vessel left the port of Manila. Operatives from the PNP Maritime Command arrested Ando. Presented for the killing of Iason, Ando contended that he did not incur criminal liability because both he and the victim were Indonesians. He likewise argued that he could not be prosecuted in Manila because the vessel is a Malaysian-registered ship. Discuss the merits of Ando's contentions. (4%) ’15-Q12

Are human rights violations considered as crimes in the Philippines? ’08 – Q1b

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Answer: Both contentions of Ando lack merit.

regardless of nationality. The ofreign characteristic of an offender does not exclude him from operation of penal laws (Galacgac, CA –G.R. – SP No. 109576, April 28, 2011, 54 O.G. 1027)

The argument of Ando that he did not incur criminal liability because both he and the victim were Indonesians is not tenable. Under the generality principle, penal laws shall be obligatory upon all who live or sojourn in the Philippines territory (Article 14 of the Civil Code). The foreign characteristic of an offender and offended party does not exclude him from operation of penal laws (People v. Galacgac, C. A., 54 O. G. 1027). Under the Revised Penal Code, except as provided in treaties and laws of preferential application, penal laws of the Philippines shall have force and effect within its territory.

Which of the following crimes is an exception to the Territoriality Rule in Criminal law? ’11 – Q53 (A) Violation of the Trademark Law committed by an alien in the Philippines. (B) Forgery of US bank notes committed in the Philippines. (C) Crime committed by a Filipino in the disputed Spratly's Island. (D) Plunder committed at his place of assignment abroad by a Philippine public officer.

Here, since, the killing took place within the Philippine territory, our penal laws applies and Ando may be held criminally responsible despite his being an Indonesian citizen.

What court has jurisdiction when an Indonesian crew murders the Filipino captain on board a vessel of Russian registry while the vessel is anchored outside the breakwaters of the Manila bay? ’11 – Q73 (A) The Indonesian court. (B) The Russian court. (C) The Philippine court. (D) Any court that first asserts jurisdiction over the case.

Likewise, the contention of Ando that he could not be prosecuted in Manila because the vessel is a Malaysian-registered ship is without merit. Under the English Rule, which our jurisdiction recognizes and follows, crimes committed aboard a vessel within the territorial waters of a country are triable in the courts of such country except when the crimes merely affect things within the vessel or when they only refer to the internal management thereof.

After drinking 1 case of San Miguel beer and taking 2 plates of "pulutan", Binoy, a Filipino seaman, stabbed to death Sio My, a Singaporean seaman, aboard M/V "Princess of the Pacific", an overseas vessel which was sailing in the South China Sea. The vessel, although Panamanian registered, is owned by Lucio Sy, a rich Filipino businessman. When M/V "Princess of the Pacific" reached a Philippine Port at Cebu City, the Captain of the vessel turned over the assailant Binoy to the Philippine authorities. An information for homicide was filed against Binoy in the RTC of Cebu City. He moved to quash the information for lack of jurisdiction. If you were the Judge, will you grant the motion? '00 – Q1

Here, since the crime was committed within Philippine waters and neither exception applies, Ando may be prosecuted in Manila.

ADDITIONAL ANSWER: Under Section 27 of the Convention of the Law of the Sea, the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage except if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea. The vessel is still within the territorials waters of the Philippines when the crime was committed since the killing happened a few moments after the vessel left the port of Manila. Murder committed by Ando disturbs the peace of the Philippines; hence, he could be prosecuted in Manila.

YES, the Motion to Quash the Information should be granted. The Philippine court has no jurisdiction over the crime committed since it was committed on the high seas or outside of Philippine territory and on board a vessel not registered or licensed in the Philippines (U.S. v. Fowler, 1 Phil 614 [1902].) It is the registration of the vessel in accordance with the laws of the Philippines, not the citizenship of her owner, which makes it a Philippine ship. The vessel being registered in Panama, the laws of Panama govern while it is in the high seas. Generality Principles of public international law exempt certain individuals from the Generality characteristic of criminal law. Who among the following are NOT exempt from the Generality rule? ’11 – Q6 (A) Ministers Resident (B) Commercial Attache of a foreign country (C) Ambassador (D) Chiefs of Mission

A foreigner residing in Hong Kong counterfeits a twenty-peso bill issued by the Philippine Government. May the foreigner be prosecuted before a civil court in the Philippines? ’12 - Q44 a) No. The provisions of the Revised Penal Code are enforceable only within the Philippine Archipelago. b) No. The Philippine Criminal Law is binding only on persons who reside or sojourn in the Philippines. c) No. Foreigners residing outside the jurisdiction of the Philippines are exempted from the operation of the Philippine Criminal Law. d) Yes. The provisions of the Revised Penal Code are enforceable · also outside the jurisdiction of the Philippines against those who should forge or counterfeit currency notes of the Philippines or obligations and securities issued by the Government of the Philippines. SUGGESTED ANSWER: d) Yes. The provisions of the Revised Penal Code are enforceable · also outside the jurisdiction of the Philippines against those who should forge or counterfeit currency notes of the Philippines or obligations and securities issued by the Government of the Philippines. The provisions of the Revised Penal Code shall be enforced outside the jurisdiction of the Philippines against those who should forge or counterfeit any Philippine currency note or obligations and securities issued by the government (Article 2). The fact that the forger is a foreigner is not a defense. Under generality principle, criminal law is enforceable to person living or sojourning in the territory of the Philippines

Laws of Preferential Application Pierceis a French diplomat stationed in the Philippines. While on EDSA and driving with an expired license, he hit a pedestrian who was crossing illegally. The pedestrian died. Pierce was charged with reckless imprudence resulting in homicide. In his defense, he claimed diplomatic immunity. Is Pierce correct? ‘14-Q17 A: Yes, Pierce is correct. Pierce, being a French diplomat stationed in the Philippines, would be exempt from the general application of our criminal laws, as provided for under the laws or treaties of preferential application, more particularly under RA. No. 75. The American Consul accredited to the Philippines while driving his car recklessly and imprudently along Roxas Boulevard bumped a pedestrian who was crossing the street and the latter died as a consequence of his injuries. Prosecuted in court for the crime of homicide thru reckless imprudence, the Consul claimed diplomatic immunity, alleging that he is not subject to Philippine laws and regulations. Is his defense tenable? ’75 – Q3

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers act results from imprudence, negligence, lack of foresight, or lack of skill (Article 4 of the Revised Penal Code).

Under the principle of public international law, only sovereigns or heads of states, ambassadors, ministers, plenipotentiary and resident ministers enjoy diplomatic immunity. Consuls do not enjoy immunity from criminal prosecution (R.A. No. 75; Schneckenburger v. Moran, 63 Phil. 249.)

Culpa Felonies are classified according to manner or mode of execution into felonies committed by means of deceit (dolo) and by means of fault (culpa). Which of the following causes may not give rise to culpable felonies? ’12 - Q64 a) Imprudence; b) Malice; c) Negligence; d) Lack of foresight. SUGGESTED ANSWER: b) Malice; Culpable crime is committed by means of negligence or imrpudence. Imprudence indicates a deficiency in actions. Negligence indicates a deficiency of perception. If a person fails to take the necessary precaution to avoid injury to person or damage to property, there is imprudence. If a person fails to pay proper attention and to use due diligence in foreseeing the injury or damage impending to be caused, there is negligence. Negligence usually involves lack of foresight. Imprudence usually involves lack of skill (The Revised Penal Code by Luis Reyes).

The Principle of Dubio Pro Reo What is the doctrine of pro reo? How does it related to Article 48 of the Revised Penal Code? ’10 – Q12b The doctrine of pro reo advocates that penal laws and laws penal in nature are to be construed and applied in a way lenient or liberal to the offender, consonant to and consistent with the constitutional guarantee that an accused shall be presumed innocent until his guilt is established beyond reasonable doubt. Following the pro reo doctrine, under Article 48 of the Revised Penal Code, crimes are complexed and punished with a single penalty (i.e., that prescribed for the most serious crime and to be imposed in its maximum period.) the rationale being, that the accused who commits two crimes with single criminal impulse demonstrated lesser perversity than when the crimes are committed by different acts and several criminal resolutions (People v. Comadre, 431 SCRA 366, 384 [2004].) However, Article 48 shall be applied only when it would bring about the imposition of penalty lesser than the penalties imposable for all the component crimes if prosecuted separately instead of being complexed.

A crime resulting from negligence, reckless imprudence, lack of foresight or lack of skill is called: ’11 – Q22 (A) dolo. (B) culpa. (C) tortious crimes. (D) quasi delict.

Applicability, Effectivity and History of Penal Code (and Penal Laws)

Culpa can either be a crime by itself or a mode of committing a crime. Culpa is a crime by itself in: ’11 – Q41 (A) reckless imprudence resulting in murder. (B) medical malpractice. (C) serious physical Injuries thru reckless imprudence. (D) complex crime of reckless imprudence resulting in serious physical injuries.

Schools of Thought of Criminal Law What are the different schools of thought or theories in Criminal Law and describe each briefly. To what theory does our Revised Penal Code belong? ’96 – Q1(1) & (2)

Crimes Malum In se and Crimes Malum Prohibitum 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. ’17 Q1 (a) Distinguish crimes mala in se from crimes mala prohibita. (3%) SUGGESTED ANSWER (a) Mala in se and mala prohibita are distinguished as follows: (1) Mala in Se are inherently wrong or immoral, while mala prohibitia are not inherently wrong; they are only wrong because they are prohibited by law; (2) In mala in se, good faith or lack of criminal intent is a defense, while in mala prohibita, good faith is not a defense; (3) Modifying circumstances can be appreciated in mala in se. These circumstances cannot be appreciated in mala prohibitia, unless the special law that punishes them adopts the technical nomenclature of the

There are two schools of thought in Criminal Law, and these are (a) the CLASSICAL THEORY, which simply means that the basis of criminal liabilities is human free will, and the purpose of the penalty is retribution which must be proportional to the gravity of the offense; and (b) the POSITIVIST THEORY, which considers man as a social being and his acts are attributable not just to his will but to other forces of society. As such, punishment is not the solution, as he is not entirely to be blamed; law and jurisprudence should not be the yardstick in the imposition of sanction, instead the underlying reasons would be inquired into. We follow the classical school of thought although some provisions of eminently positivist in tendencies, like punishment of impossible crime, Juvenile circumstances, are incorporated in our Code. Repealed Crimes When a penal law is absolutely repealed such that the offense is decriminalized, a pending case charging the accused of the repealed crime is to be: ’11 – Q18 (A) prosecuted still since the charge was valid when filed. (B) dismissed without any precondition. (C) dismissed provided the accused is not a habitual delinquent. (D) prosecuted still since the offended party has a vested interest in the repealed law.

Criminal Liabilities and Felonies a) How are felonies committed? Explain each. (3%) ’15-Q1a Answer: (a) Felonies are committed are not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers penalties of the Revised Penal Code; (4) Mala in se are punishable under the Revised Penal Code; or special laws where the acts punishable therein are wrong by nature. Mala prihibita are punishable under special laws. (b) Was Tony criminally liable for child abuse under R.A. No. 7610? Explain your answer. (3%) SUGGESTED ANSWER (b) Tony laid hands on Juanito without intent to debase the “intrinsic worth and dignity” of Juanito as a human being, or that he had had thereby intended to humiliate or embarrass Juanito. It appears that the laying of hands on Juanito 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 son, Tonito, who fell to the ground due to the shoving by Juanito. 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; hence, the crime committed is only slight physical injuries (Bongalon v. People, G.R. No. 169533, March 20, 2013).

SUGGESTED ANSWER: c) Light felonies are punishable only when consummated, with the exception of those committed against persons or property. Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property (Article 7 of the Revised Penal Code). The classification of felonies into grave, less grave, and light is important in ascertaining: ’11 – Q60 (A) if certain crimes committed on the same occasion can be complexed. (B) the correct penalty for crimes committed through reckless imprudence. (C) whether the offender is liable as an accomplice. (D) what stage of the felony has been reached. Relevance of Motive It is a matter of judicial knowledge that certain individuals will kill others or commit serious offenses for no reason at all. For this reason: ’11 – Q31 (A) lack of motive can result in conviction where the crime and the accused's part in it are shown. (B) motive is material only where there is no evidence of criminal intent. (C) lack of motive precludes conviction. (D) the motive of an offender is absolutely immaterial.

Distinguish, in their respective concepts and legal implications, between crimes mala in se and crimes mala prohibita. ’05 – Q1(5); ’03 – Q1

Motive is generally IMMATERIAL in determining criminal liability EXCEPT when: ’11 – Q57 (A) several offenders committed the crime but the court wants to ascertain which of them acted as leader. (B) the evidence of the crime consists of both direct and circumstantial evidence. (C) ascertaining the degree of penalty that may be imposed on the offender. (D) the evidence of guilt of the accused is circumstantial.

In concept: Crimes mala in se are those where the acts or omissions penalized are inherently bad, evil, or wrong that they are almost universally condemned. Crimes mala prohibita are those where the acts penalized are not inherently bad, evil, or wrong but prohibited by law for public good, public welfare or interest and whoever violates the prohibition are penalized. In legal implications: In crimes mala in se, good faith or lack of criminal intent/ negligence is a defense, while in crimes mala prohibita, good faith or lack of criminal intent or malice is not a defense; it is enough that the prohibition was voluntarily violated. Also, criminal liability is generally incurred in crimes mala in se even when the crime is only attempted or frustrated, while in crimes mala prohibita, criminal liability is generally incurred only when the crime is consummated. Also in crimes mala in se, mitigating and aggravating circumstances are appreciated in imposing the penalties, while in crimes mala prohibita, such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the Revised Penal Code.

Motive is essential in the determination of the commission of a crime and the liabilities of perpetrators. What are the instances where proof of motive is not essential or required to justify conviction of an accused? Give at least 3 instances. ’06 – Q1 Proof of motive is not required – 1. Where the offender is positively identified; or 2. Has admitted the committed the commission of the crime (People v. Yurong, 133 SCRA [1984] citing People v. Realon, 94 SCRA 422 [1980]; 3. Where the crime committed is a malum prohibitum; or 4. Where the crime is the product of culpa or criminal negligence. Distinguish “motive” from “intent”. '99 – Q4a

May an act be malum in se and be, at the same time, malum prohibitum? '97 – Q1

“Motive” is the moving power which impels a person to do an act for a definite result; while “intent” is the purpose for using a particular means to bring about a desired result. Motive is not an element of a crime but intent is an element of intentional crimes. Motive, if attending a crime, always precede the intent.

YES, an act may be malum in se and malum prohibitum at the same time. In People v. Sunico (CA 50 OG 5880), it was held that the omission or failure of election inspectors and poll clerks to include a voter's name in the registry list of voters is wrong per se because it disenfranchises a voter of his right to vote. In this regard it is considered as malum in se. Since it is punished under a special law (Sections 101 and 103, Revised Election Code), it is considered malum prohibitum.

When is motive relevant to prove a case? When is it not necessary to be established? '99 – Q4b Motive is relevant to prove a case when there is doubt as to the identity of the offender or when the act committed gives rise to variant crimes and there is the need to determine the proper crime to be imputed to the offender. It is not necessary to prove motive when the offender is positively identified or the criminal act did not give rise to variant crimes.

Grave, Less Grave and Light Penalties When are light felonies punishable? ’12 – Q9 a) Light felonies are punishable in all stages of execution. b) Light felonies are punishable only when consummated. c) Light felonies are punishable only when consummated, with the exception of those committed against persons or property. d) Light felonies are punishable only when committed against persons or property.

Rules on Criminal Liability Proximate Cause What is aberratio ictus? (2%) ’15-Q1a

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Aberratio ictus means mistake of blow. Under the principle of aberration ictus, person is criminally responsible for committing an intentional felony although the consequent victim is different from that intended due to mistake of blow. This principle is based on the rule in Article 4 of the Revised Penal Code, which provides that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.

6539, as amended by R.A. No. 7659, not qualified theft (People v. Bustinna.) Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter, Gaston, while driving a car saw Belle crossing the street. Incensed that Belle had reported him, Gaston decided to scare her by trying to make it appear that he was about to run her over. He revved the engine of his car and drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and hit Belle causing her death. Was Gaston criminally liable? What is the liability of Gaston? '05 – Q2(1)

Under which of the following circumstances is an accused not liable for the result not intended? ’12 – Q2 a) Accused is not criminally liable for the result not intended when there is mistake in the identity of the victim. b) Accused is not criminally liable for the result not intended when there is mistake in the blow. c) Accused is not criminally liable for the result not intended when the wrongful act is not the proximate cause of the resulting injury. d) Accused is not criminally liable for the result not intended when there is mistake of fact constituting an involuntary act. SUGGESTED ANSWER: d) Accused is not criminally liable for the result not intended when there is mistake of fact constituting an involuntary act. The Supreme Court in several cases had applied the “mistake of fact” doctrine in relation to the justifying circumstance of self-defense (United States vs. Ah Chong, G.R. No. L-5272, March 19, 1910, 15 Phil., 488), defense of person and right (Unites States vs. Apego, G.R. No. L-7929, Nov. 18, 1912, 23 Phil. 391), performance of duty, (People vs. Mamasalaya, G.R. No. L-4911, February 10, 1953), and the exempting circumstance of obedience of an order of superior officer (People vs. Beronilla, G.R. No. L-4445, February 28, 1955) Hence, mistake of fact principle can likewise be applied in relation to circumstance of lack of voluntariness such as the circumstance of irresistible force or uncontrollable fear. In sum, the accused will not be held criminally liable for the result not intended when there is mistake of fact constituting an involuntary act.

Gaston is criminally liable for homicide in doing the felonious act which caused Belle’s death, although the penalty therefor shall be mitigated by lack of intention to commit so grave a wrong as that committed (Article 13(3), RPC.) The act, having been deliberately done with malice, brings about criminal liability although the wrong done was different done from what was intended (Article 4(1), RPC.) Alternative Answer: Yes, Gaston is liable for Belle's death because by his acts of revving the engine of his car and driving towards Belle is felonious, and such felonious act was the proximate cause of the vehicle to skid and hit Belle, resulting in the latter's death. Stated otherwise, the death of Belle was the direct, natural and logical consequence of Gaston's felonious act (People v. Arpa, 27 SCRA 1037 [1969]). On his way home from office, ZZ rode in a jeepney. Subsequently, XX boarded the same jeepney. Upon reaching a secluded spot in QC, XX pulled out a grenade from his bag and announced a holdup. He told ZZ to surrender his watch, wallet and cellphone. Fearing for his life, ZZ jumped out of the vehicle. But as he fell, his head hit the pavement, causing his instant death. Is XX liable for ZZ's death? '04 – Q2a YES, XX is liable for ZZ's death because his acts of pulling out a grenade and announcing a hold-up, coupled with a demand for the watch, wallet and cellphone of ZZ is felonious, and such felonious act was the proximate cause of ZZ's jumping out of the jeepney, resulting in the latter's death. Stated otherwise, the death of ZZ was the direct, natural and logical consequence of XX's felonious act which created an immediate sense of danger in the mind of ZZ who tried to avoid such danger by jumping out of the jeepney (People v. Arpa, 27 SCRA 1037 [1969].)

ALTERNATIVE ANSWER: c) Accused is not criminally liable for the result not intended when the wrongful act is not the proximate cause of the resulting injury. Accused is not criminally liable for the result not intended when the wrongful act is not the proximate cause of the resulting injury. While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an on-coming tricycle, killing the tricycle driver. 1. What is the criminal liability of Carlos, if any? ’08 – Q1

The conduct of wife A aroused the ire of her husband B. Incensed with anger almost beyond his control, B could not help but inflict physical injuries on A. Moments after B started hitting A with his fists, A suddenly complained of severe chest pains. B, realizing that A was indeed in serious trouble, immediately brought her to the hospital. Despite efforts to alleviate A's pains, she died of heart attack. It turned out that she had been suffering from a lingering heart ailment. What crime, if any, could B be held guilty of? '03 – Q5

Carlos has no criminal liability, he only acted in the lawful exercise of his right. It is his right to protect his property, and what he did was to aim and hit the wheel of the car and not any particular person.

B could be held liable for parricide because his act of hitting his wife with fist blows and therewith inflicting physical injuries on her, is felonious. A person committing a felonious act incurs criminal liability although the wrongful consequence is different from what he intended (Article 4, par. 1, RPC). Although A died of heart attack, the said attack was generated by B's felonious act of hitting her with his fists. Such felonious act was the immediate cause of the heart attack, having materially contributed to and hastened A's death. Even though B may have acted without intent to kill his wife, lack of such intent is of no moment when the victim dies. However, B may be given the mitigating circumstance of having acted without intention to commit so grave a wrong as that committed (Article 13, par. 3, RPC).

Another Alternative Answer: Carlos is liable for the natural and logical consequences of his acts, although the injury that resulted is different from that which he intended (Praeter Intentionem). He incurs criminal liability for reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code for the death of the tricycle driver. He took the law into his own hands, open fired at the wheels of his vehicle to stop it from being stolen, but instead caused the death of the tricycle driver, because of inexcusable lack of precaution. 2.

What is the criminal liability of Paolo, if any? ’08 – Q2

Paolo, who acted with intent to gain, unlawfully took the personal property with force upon things, is liable for carnapping under R.A. No.

Maryjane had 2 suitors - Felipe and Cesar. She did not openly show her preference but on two occasions, accepted Cesar's invitation to concerts by Regine and Pops. Felipe was a working

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers student and could only ask Mary to see a movie which was declined. Felipe felt insulted and made plans to get even with Cesar by scaring him off somehow. One day, he entered Cesar's room in their boarding house and placed a rubber snake which appeared to be real in Cesar's backpack. Because Cesar had a weak heart, he suffered a heart attack upon opening his backpack and seeing the snake. Cesar died without regaining consciousness. The police investigation resulted in pinpointing Felipe as the culprit and he was charged with Homicide for Cesar's death. In his defense, Felipe claimed that he did not know about Cesar's weak heart and that he only intended to play a practical joke on Cesar. Is Felipe liable for the death of Cesar or will his defense prosper? '01 – Q2

What do you understand by aberratio ictus: error in personae; and praeter intentionem? Do they alter the criminal liability of an accused? ’99 – Q6 ABERRATIO ICTUS or mistake in the blow occurs when the offender delivered the blow at his intended victim but missed, and instead such blow landed on an unintended victim. The situation generally brings about complex crimes where from a single act, two or more grave or less grave felonies resulted, namely the attempt against the intended victim and the consequence on the unintended victim. As complex crimes, the penalty for the more serious crime shall be the one imposed and in the maximum period. It is only when the resulting felonies are only light that complex crimes do not result and the penalties are to be imposed distinctly for each resulting crime. ERROR IN PERSONAE or mistake in identity occurs when the offender actually hit the person to whom the blow was directed but turned out to be different from and not the victim intended. The criminal liability of the offender is not affected, unless the mistake in identity resulted to a crime different from what the offender intended to commit, in which case the lesser penalty between the crime intended and the crime committed shall be imposed but in the maximum period (Article 49, RPC). PRAETER INTENTIONEM or where the consequence went beyond that intended or expected. This is a mitigating circumstance (Article 13, par. 3, RPC) when there is a notorious disparity between the act or means employed by the offender and the resulting felony, i,e., the resulting felony could not be reasonably anticipated or foreseen by the offender from the act or means employed by him.

YES, Felipe is liable for the death of Cesar but he shall be given the benefit of the mitigating circumstance that he did not intend to commit so grave a wrong as that which was committed (Article 13, par. 3, RPC). When Felipe intruded into Cesar's room without the latter's consent and took liberty with the letter's backpack where he placed the rubber snake, Felipe was already committing a felony. And any act done by him while committing a felony is no less wrongful, considering that they were part of “plans to get even with Cesar”. Felipe's claim that he intended only “to play a practical joke on Cesar” does not persuade, considering that they are not friends but in fact rivals in courting Maryjane. This case is parallel to the case of People v. Pugay. Luis Cruz was deeply hurt when his offer of love was rejected by his girlfriend Marivella one afternoon when he visited her. When he left her house, he walked as if he was sleepwalking so much so that a teenage snatcher was able to grab his cell phone and flee without being chased by Luis. At the next LRT station, he boarded one of the coaches bound for Baclaran. While seated, he happened to read a newspaper left on the seat and noticed that the headlines were about the sinking of the Super Ferry while on its way to Cebu. He went over the list of missing passengers who were presumed dead and came across the name of his grandfather who had raised him from childhood after he was orphaned. He was shocked and his mind went blank for a few minutes, after which he ran amuck and, using his balisong, started stabbing at the passengers who then scampered away, with three of them Jumping out of the train and landing on the road below. All the three passengers died later of their injuries at the hospital. Is Luis liable for the death of the three passengers who jumped out of the moving train? '01 – Q1

Alexander, an escaped convict, ran amuck on board a Superlines Bus bound for Manila from Bicol and killed 10 persons. Terrified by the incident, Carol and Benjamin who are passengers of the bus, jumped out of the window and while lying unconscious after hitting the pavement of the road, were ran over and crushed to death by a fast moving Desert Fox bus tailing the Superlines Bus. Can Alexander be held liable for the death of Carol and Benjamin although he was completely unaware that the two jumped out of the bus? '96 – Q4(1) YES, Alexander can be held liable for the death of Carol and Benjamin because of felonious act of running was the proximate cause of the victim's death. The rule is that when a person, by a felonious act, generates in the mind of another a sense of imminent danger, prompting the latter to escape from or avoid such danger and in the process, sustains injuries or dies, the person committing the felonious act is responsible for such injuries or death (U.S. v. Valdez, 41 Phil. 1497; People v. Arpa, 27 SCRA 1037.)

YES, Luis is liable for their deaths because he was committing a felony when he started stabbing at the passengers and such wrongful act was the proximate cause of said passengers' jumping out of the train; hence their deaths. Under Article 4, RPC, any person committing a felony shall incur criminal liability although the wrongful act done be different from that which he intended. In this case, the death of the three passengers was the direct, natural and logical consequence of Luis' felonious act which created an immediate sense of danger in the minds of said passengers who tried to avoid or escape from it by jumping out of the train (People v. Arpa, 27 SCRA 1037 [1969]; U.S. v. Valdez, 41 Phil. 1497 [1921].)

Vicente hacked Anacleto with a bolo but the latter was able to parry it with his hand, causing upon him a 2-inch wound on his right palm. Vicente was not able to hack Anacleto further because three policemen arrived and threatened to shoot Vicente if he did not drop his bolo. Vicente was accordingly charged by the police at the prosecutor's office for attempted homicide. 25 days later, while the preliminary investigation was in progress, Anacleto was rushed to the hospital because of symptoms of tetanus infection on the 2-inch wound inflicted by Vicente. Anacleto died the following day. Can Vicente be eventually charged with homicide for the death of Anacleto? '96 – Q9

During the robbery in a dwelling house, one of the culprits happened to fire his gun upward in the ceiling without meaning to kill anyone. The owner of the house who was hiding thereat was hit and killed as a result. The defense theorized that the killing was a mere accident and was not perpetrated in connection with, or for purposes of, the robbery. Will you sustain the defense? '99 – Q2

YES, Vicente may be charged of homicide for the death of Anacleto, unless the tetanus infection which developed twenty five days later, was brought about by an efficient supervening cause. Vicente's felonious act of causing a two-inch wound on Anacleto's right palm may still be regarded as the proximate cause of the latter's death because without such wound, no tetanus infection could develop from the victim's right palm, and without such tetanus infection the victim would not have died with it.

NO, I will not sustain the defense. The act being felonious and the proximate cause of the victim's death, the offender is liable therefore although it may not be intended or different from what he intended. The offender shall be prosecuted for the composite crime of robbery with homicide, whether the killing was intentional or accidental, as long as the killing was on occasion of the robbery.

The accused ran amuck aboard a moving train, and killed eight persons. Terrified by the happening, four passengers jumped out of the train and died as a result of their fall. Can the accused be held liable for the death of the four although he did not even know that they jumped? ’75 – Q4

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers mores, G.R. No. L-1896, February 16, 1950, En Banc). If the means employed to accomplish the felony is adequate of effectual, the felony was not produced by reason of causes independent of the will of the perpetrator, the crime committed is frustrated felony. (Example: The offender with intent to kill mixed arsenic with the coffee for another; the latter did not die not by reason of inadequate quantity of the poison to kill but due to timely medical intervention; the offender is liable for frustrated murder). Hence, the answer is “B”.

The accused can be held liable. Because by running amuck aboard the train and killing eight persons, he committed acts which are felonious. The death of the four passengers who jumped out of the train because they were terrified by the happening is the direct, natural and logical consequence of the running amuck of the accused (Article 4, par. 1, RPC; People v. Arpa, 27 SCRA 1037 [1969].) Impossible Crime

Is the penalty for impossible crime applicable to one who attempts to commit a light felony of impossible materialization? ’12 - Q69 a) No. The evil intent of the offender cannot be accomplished. b) No. An attempt to commit light felony constitutes an employment of inadequate or ineffectual means. c) No. The penalty for consummated light felony is less than the penalty for impossible crime. d) No. In impossible crime, the act performed should not constitute a violation of another offense. SUGGESTED ANSWER: c) No. The penalty for consummated light felony is less than the penalty for impossible crime. The penalty for impossible crime is arresto mayor or a fine from 200 to 500 pesos (Article 59 of the Revised Penal Code) while the penalty for light felony is arresto menor or a fine not exceeding P200 or both. Article 59 should not be made applicable to one who tempts to commit a light felony if impossible materialization since the penalty for the former is graver than that for the latter. It would be unfair to punish a person, who failed to commit a light felony since it is impossible to accomplish it, for a graver penalty than that for a person who committed a light felony.

What is an impossible crime? Can there be an impossible crime of adultery? (2%) ’15-Q21b

An impossible crime is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. There is no impossible crime of adultery since this is a crime against chastity, and not against person or property. Puti detested Pula, his roommate, because Pula was courting Ganda, whom Puti fancied. One day, Puti decided to teach Pula a lesson and went to a veterinarian (Vet) to ask for poison on the pretext that he was going to kill a sick pet, when actually Puti was intending to poison Pula. The Vetinstantly gave Puti a non-toxic solution which, when mixed with Pula’s food, did not kill Pula. ‘14-Q13 (A) What crime, if any, did Puti commit? Puti committed an impossible crime of murder. Puti with intent to kill Pula unknowingly employed ineffectual means to accomplish the intended felony, that is, using a non-toxic solutions. (B) Would your answer be the same if, as a result of the mixture, Pula got an upset stomach and had to be hospitalized for 10 days? No. If as a result of the mixture administered by Puti, Pula suffered an upset stomach and had to be hospitalized for 10 days, Puti shall be liable for less serious physical injuries. The rule is, in impossible crime the act performed should not constitute a violation of another provision of the Revised Penal Code.

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad. The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad. ’09 – Q4 1. Did Charlie commit any crime? If so, what and why? If not, why not? ’09 – Q4-1 Charlie committed an impossible crime of murder. His act of mixing the non-toxic powder with Brad’s food, with intent to kill, would have constituted murder which is a crime against persons, had it not been for the employment of a means which, unknown to him, is ineffectual (2nd Par., Article 4, RPC.)

Can there be a frustrated impossible crime? ’12 – Q3 a) Yes. When the crime is not produced by reason of the inherent impossibility of its accomplishment, it is a frustrated impossible crime. b) No. There can be no frustrated impossible crime because the means employed to accomplish the crime is inadequate or ineffectual. c) Yes. There can be a frustrated impossible crime when the act performed would be an offense against persons. d) No. There can be no frustrated impossible because the offender has already performed the acts for the execution of the crime.

2.

Would your answer be the same if Brad proved to be allergic to the powder, and after ingesting it with his food, fell ill and was hospitalized for 10 days? ’09 – Q4-2

NO, the answer would not be the same. Charlie would be criminally liable for less serious physical injuries because his act of mixing the powder with Brad’s food was done with felonious intent and was the proximate cause of Brad’s illness for 10 days. It cannot constitute attempted murder, although done with intent to kill, because the means employed is inherently ineffectual to cause death and the crime committed must be directly linked to the means employed, not to the intent. Liability for an impossible crime can only arise from a consummated act.

SUGGESTED ANSWER: d) No. There can be no frustrated impossible because the offender has already performed the acts for the execution of the crime. There can be no frustrated impossible crime because the offender has already performed the acts for the execution of the crime.

OZ and YO were both courting their co-employee, SUE. Because of their bitter rivalry, OZ decided to get rid of YO by poisoning him. OZ poured a substance into YO's coffee thinking it was arsenic. It turned out that the substance was white sugar substitute known as Equal. Nothing happened to YO after he drank the coffee. What criminal liability did OZ incur, if any? '04 – Q7b

ALTERNATIVE ANSWER: b) No. There can be no frustrated impossible crime because the means employed to accomplish the crime is inadequate or ineffectual. If one performed all the acts of execution but the felony was not produced, the crime committed is either frustrated felony or impossible crime and not frustrated impossible crime. If the felony despite the performance of all acts of execution was not produced due to the employment of inadequate or ineffectual means to accomplish it, the crime committed is impossible crime. (Example: If the accused with intent to kill thought that the salt, which he mixed with the coffee of another, is arsenic powder, he is liable for impossible crime – People vs. Bal-

OZ incurred criminal liability for an impossible crime of murder. Criminal liability shall be incurred by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers employment of inadequate or ineffectual means (Article 4, par. 2, RPC). In the problem given, the impossibility of accomplishing the crime of murder, a crime against persons, was due to the employment of ineffectual means which OZ thought was poison. The law imputes criminal liability to the offender although no crime resulted, only to suppress his criminal propensity because subjectively, he is a criminal though objectively, no crime was committed.

guilty of attempted murder. If you were the ponente, how will you decide the appeal? '94 – Q10 If I were the ponente, I will set aside the judgment convicting the accused of attempted murder and instead find them guilty of impossible crime under Article 4, par. 2, RPC, in relation to Article 59, RPC. Liability for impossible crime arises not only when the impossibility is legal, but likewise when it is factual or physical impossibility, as in the case at bar. Elsa's absence from the house is a physical impossibility which renders the crime intended inherently incapable of accomplishment. To convict the accused of attempted murder would make Art. 4, par. 2 practically useless as all circumstances which prevented the consummation of the offense will be treated as an incident independent of the actor's will which is an element of attempted or frustrated felony (Intod v. Court of Appeals, 215 SCRA 52 [1992].)

What is an impossible crime? '00 – Q17a An impossible crime is an act which would be an offense against person or property, were if not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Article 4, par. 2, RPC.)

Stages of a Felony Why is there no crime of frustrated serious physical injuries? (2%) ’17 – Q6 SUGGESTED ANSWER (d) According to Justice Regalado," the crime of physical injuries is a formal crime since a single act consummates it as a matter of law; hence, it has no attempted or frustrated stage. Once the injuries arc inflicted, the offense is consummated.

Is an impossible crime really a crime? '00 – Q17b NO, an impossible crime is not really a crime. It is only so-called because the act gives rise to criminal liability. But actually, no felony is committed. The accused is to be punished for his criminal tendency or propensity although no crime was committed. A, B, C and D, all armed with armalites, proceeded to the house of X. Y, a neighbor of X, who happened to be passing by, pointed to the four culprits the room that X occupied. The four culprits peppered the room with bullets. Unsatisfied, A even threw a hand grenade that totally destroyed X's room. However, unknown to the four culprits, X was not inside the room and nobody was hit or injured during the Incident. Are A, B, C and D liable for any crime? '00 – Q17c

Clepto went alone to a high-end busy shop and decided to take one of the smaller purses without paying for it. Overcame by conscience, she decided to leave her own purse in place of the one she took. Her act was discovered and Cleptowas charged with theft. She claimed that there was no theft, as the store suffered no injuryor prejudice because she had left a purse in place of the one she took. Comment on her defense. ‘13-Q19

YES. “A”, “B”, “C” and “D” are liable for destructive arson because of the destruction of the room of X with the use of an explosive, a hand grenade. Liability for an impossible crime is to be imposed only if the act committed would not constitute any other crime under the Revised Penal Code. Although the facts involved are parallel to the case of Intod v. Court of Appeals (215 SCRA 52 [1992]), where it was ruled that the liability of the offender was for an impossible crime, no hand grenade was used in said case, which constitutes a more serious crime though different from what was intended.

A: Her defense is untenable. Theft was already consummated from the taking of the personal property of another with intent to gain without the consent of the latter. The presence of injury or damage is not an element of theft. Her leaving behind her own purse will not alter the fact that she took a purse from the high-end shop without the consent of the owner. In an attempted felony, the offender’s preparatory act: ’11 – Q68 (A) itself constitutes an offense. (B) must seem connected to the intended crime. (C) must not be connected to the intended crime. (D) requires another act to result in a felony.

Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and fetch her to and from school. Enrique wrote a ransom note demanding P500,000 from Carla's parents in exchange for Carla's freedom. Enrique sent the ransom note by mail. However, before the ransom note was received by Carla's parents, Enrique's hideout was discovered by the police. Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla's parents, the investigating prosecutor merely filed a case of “Impossible Crime to Commit Kidnapping” against Enrique. Is the prosecutor correct? '00 – Q17d

Taking into account the nature and elements of the felonies of coup d’état and rape, may one be criminally liable for frustrated coup d’état or frustrated rape? ’05 – Q1(4) NO, a person may not be held liable for frustrated coup d’état or for frustrated rape because in a frustrated felony, it is required that all acts of execution that could produce the felony as a consequence must have been performed by the offender but the felony was not produced by reason of causes independent of the will of the offender. In the said felonies, however, one cannot perform all the acts of execution without consummating the felony. The said felonies, therefore, do not admit of the frustrated stage.

NO, the prosecutor is not correct in filing a case for “impossible crime to commit kidnapping” against Enrique. Impossible crimes are limited only to acts which when performed would be a crime against persons or property. As kidnapping is a crime against personal security and not against persons or property, Enrique could not have incurred an “impossible crime” to commit kidnapping. There is thus no impossible crime of kidnapping.

In the jewelry section of a big department store, Julia snatched a couple of bracelets and put these in her purse. At the store's exit, however, she was arrested by the guard after being radioed by the store personnel who caught the act in the store's moving camera. Is the crime consummated, frustrated, or attempted? '98 – Q17

JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the assistance of Ella, who is familiar with the place. On April 3, 1992, at about 10 PM, JP, Aries and Randal, all armed with automatic weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of Elsa. Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she attended a prayer meeting that evening in another barangay in Laurel. JP, et al, were charged and convicted of attempted murder by the RTC of Tanauan, Batangas. On appeal to the CA, all the accused ascribed to the trial court the sole error of finding them

The crime is consummated theft because the taking of the bracelets was complete after Julia succeeded in putting them in her purse. Julia acquired complete control of the bracelets after putting them in her purse; hence, the taking with intent to gain is complete and thus the crime is consummated. Circumstances Affecting Criminal Liabilities

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Justifying Circumstances

that he would stop drinking and never beat her again. However, Dion did not make good on his promise. Just after one week, he started drinking again. Talia once more endured the usual verbal abuse. Afraid that he might beat her up again, Talia stabbed Dion with a kitchen knife while he was passed out from imbibing too much alcohol. Talia was charged with the crime of parricide. ’15 – Q5

Self-Defense Romeo and Julia have been married for twelve (12) years and had two (2) children. The first few years of their marriage went along smoothly. However, on the fifth year onwards, they would often quarrel when Romeo comes home drunk. The quarrels became increasingly violent, marked by quiet periods when Julia would leave the conjugal dwelling. During these times of quiet, Romeo would "court" Julia with flowers and chocolate and convince her to return home, telling her that he could not live without her; or Romeo would ask Julia to forgive him, which she did, believing that if she humbled herself, Romeo would change. After a month of marital bliss, Romeo would return to his drinking habit and the quarrel would start again, verbally at first, until it would escalate to physical violence. . One night, Romeo came home drunk and went straight to bed. Fearing the onset of another violent fight, Julia stabbed Romeo while he was asleep. A week later, their neighbors discovered Romeo's rotting corpse on the marital bed. Julia and the children were nowhere to be found. Julia was charged with parricide. She asserted "battered woman's syndrome" as her defense. [a] Explain the "cycle of violence." (2.5%) ’16 – Q19(a)

a) May Talia invoke the defense of Battered Woman Syndrome to free herself from criminal liability? Explain. (2.5%) ’15 – Q5a Answer: (a) No, a single act of battery or physical harm committed by Dion against Talia resulting to the physical and psychological or emotional distress on her part is not sufficient to avail of the benefit of the justifying circumstance of “Battered Women Syndrome”. The defense of Battered Women Syndrome can be invoked if the woman with marital relationship with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm resulting to the physical and psychological or emotional distress. Cumulative means resulting from successive addition. In sum, there must be “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear or an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life (People v. Genosa, G.R. No. 135981, January 15, 2004).

The battered woman syndrome is characterized by the so-called “cycle of violence,” which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. During the tension-building phase, minor battering occurs - it could be verbal or slight physical abuse or another form of hostile behavior. The woman tries to pacify the batterer through a kind, nurturing behavior; or by simply staying out of his way. The acute battering incident is characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief.

b) Will your answer be the same, assuming that Talia killed Dion after being beaten up after a second time? Explain. (2.5%) ’15 - Q5b (b) Yes, Talia can invoke the defense of Battered Women Syndrome to free herself from criminal liability for killing her husband since she suffered physical and emotional distress arising from cumulative abuse or battery. Under Section 26 of RA 9262, victim survivors of Battered Women Syndrome do not incur any criminal or civil liability despite the absence of the requisites of self-defense.

[b] Is Julia's "battered woman's syndrome" defense meritorious? Explain. (2.5%) ’16 – Q19(b)

Macho married Ganda, a transgender. Macho was not then aware that Ganda was a transgender. On their first night, after their marriage, Macho discovered that Ganda was a transgender. Macho confronted Ganda and a heated argument ensued. In the course of the heated argument, a fight took place wherein Ganda got hold of a knife to stab Macho. Macho ran away from the stabbing thrusts and got his gun which he pointed at Ganda just to frighten and stop Ganda from continuing with the attack. Macho had no intention at all to kill Ganda. Unfamiliar with guns, Macho accidentally pulled the trigger and hit Ganda that caused the latter’s death. What was the crime committed? –’14- Q2

Yes. Under Section 3 (c) of RA No. 9262, ’’Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of “cumulative abuse”. Under Section 3 (b), ’’Battery” refers to an act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress (Section 3). In sum, the defense of Battered Woman Syndrome can be invoked if the woman in marital relationship with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm resulting to the physical and psychological or emotional distress. Cumulative means resulting from successive addition. In sum, there must be aat least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life (People v. Genosa, GR. No. 135981,15 January 2004). In this case, because of the battering episodes, Julia, feared the onset of another violent fight and honestly believed the need to defend herself even if Romeo had not commenced an unlawful aggression. Even in the absence of unlawful aggression, however, Battered Woman Syndrome is a defense. Under Section 27 of RA No. 9262, Battered Woman Syndrome is a defense notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code such as unlawful aggression (Section 26 of RA No. 9262).

A: Considering that death resulted from Macho’s accidentally pulling the trigger of his gun and even if there be no intent to kill, the crime is still homicide. Here, intent to kill is conclusively presumed when the victim dies as a consequence. AA: Macho did not commit a crime. His act of pointing his gun at Ganda is a reasonable means to repel an unprovoked unlawful aggression committed by the latter. Since his act of pointing the gun is lawful, the firing thereof, which hit Ganda causing her death, should be treated as accident, which is an exempting circumstance. In People v. Tiongco (CA 63 OG 3610), the accused, who accidentally fired his gun while exercising his right of self-defense, was acquitted. His act of confronting Ganda about his real gender cannot be considered sufficient provocation on his part. Ms. Ahad been married to Mr. B for 10 years. Since their marriage, Mr. B had been jobless and a drunkard, preferring to stay with his "barkadas" until the wee hours of the morning. Ms. A was the breadwinner and attended to the needs of their three (3) growing children. Many times, when Mr. Bwas drunk, he would beat Ms. Aand their three (3) children, and shout invectives against them. In fact, in one of the beating incidents, Ms. A suffered a deep stab wound on her tummy that required a prolonged stay in the hospi-

Dion and Talia were spouses. Dion always came home drunk since he lost his job a couple of months ago. Talia had gotten used to the verbal abuse from Dion. One night, in addition to the usual verbal abuse, Dion beat up Talia. The next morning, Dion saw the injury that he had inflicted upon Talia and promised her

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers tal. Due to the beatings and verbal abuses committed against her, she consulted a psychologist several times, as she was slowly beginning to lose her mind. One night, when Mr. Barrived dead drunk, he suddenly stabbed Ms. Aseveral times while shouting invectives against her. Defending herself from the attack, Ms. A grappled for the possession of a knife and she succeeded. She then stabbed Mr. B several times which caused his instantaneous death. Medico-Legal Report showed that the husband suffered three (3) stab wounds. Can Ms. Avalidly put up a defense? Explain. (5%) ‘14-Q1

2.

What are the three (3) phases of “Battered Woman Syndrome”? ’10 – Q19-2

The three (3) phases of the “Battered Woman Syndrome” are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving, or non-violent phase (People v. Genosa, 419 SCRA 537 [2004].) 3.

A: Yes, Ms. A can put up the defense of battered woman syndrome. It appears that she is suffering from physical and psychological or emotional distress resulting from cumulative abuse by her husbamd. Under Sec. 26 of RA No. 9262, “victims survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements of the justifying cirumstances of self-defense under the Revised Penal Code.” As a rule, once the unlawful aggression ceased, stabbing the victim further is not self-defense. However, even if the element of self in self-defense is lacking, Ms. A, who is suffering from battered woman syndrome, will not incur criminal and civil liability. Alternative Answer: Ms. A may validly put up the justifying circumstance of self-defense, all requisites thereof being present, namely: 1. Unlawful aggression which is condition sine qua non. Here, Mr. B arrived that night dead drunk and he suddenly stabbed Ms. A several times while shouting invectives. This is unlawful aggression that is sudden and imminent and places Ms. A’s life in peril. 2. Reasonable necessity of the means employed to prevent or repel it. The sudden and imminent armed attack by Mr. B gave no other option to Ms. A but to attempt to disarm Mr. B of his knife and to use the same to protect and save herself. 3. Lack of sufficient provocation on the part of the person defending himself. The circumstances obtaining is very clear on this regard.. Mr. B arrived one night dead drunk, he suddenly stabbed Ms. A several times while shouting invectives. There is absolutely no circumstances mentioned in the problem to indicate provocation on the part of the person defending himself.

Would the defense prosper despite the absence of any of the elements for justifying circumstances under the Revised Penal Code? ’10 – Q19-3

The defense will prosper. Section 26 of R.A. No. 9262 provides that victim-survivors who are found by the court to be suffering from battered woman syndrome do not incur any criminal or civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. The accused lived with his family in a neighborhood that often was the scene of frequent robberies. At one time, past midnight, the accused went downstairs with a loaded gun to investigate what he thought were footsteps of an uninvited guest. After seeing what appeared to him an armed stranger looking around and out to rob the house, he fired his gun seriously injuring the man. When the lights were turned on, the unfortunate victim turned out to be a brother-in-law on his way to the kitchen to get some light snacks. The accused was indicted for serious physical injuries. Should the accused, given the circumstances, be convicted or acquitted? '03 – Q2 The accused should be convicted because, even assuming the facts to be true in his belief, his act of shooting a burglar when there is no unlawful aggression on his person is not justified. Defense of property or property right does not justify the act of firing a gun at a burglar unless the life and limb of the accused is already in imminent and immediate danger. Although the accused acted out of a misapprehension of the facts, he is not absolved from criminal liability. Alternative Answer: Considering the given circumstances, namely; the frequent robberies in the neighborhood, the time was past midnight, and the victim appeared to be an armed burglar in the dark and inside his house, the accused could have entertained an honest belief that his life and limb or those of his family are already in immediate and imminent danger. Hence, it may be reasonable to accept that he acted out of an honest mistake of fact and therefore without criminal intent. An honest mistake of fact negatives criminal intent and thus absolves the accused from criminal liability.

The husband has for a long time physically and mentally tortured his wife. After one episode of beating, the wife took the husband’s gun and shot him dead. Under the circumstances, her act constitutes: ’11 – Q14 (A) mitigating vindication of grave offense. (B) battered woman syndrome, a complete self-defense. (C) incomplete self-defense. (D) mitigating passion and obfuscation. A battered woman claiming self-defense under the Anti-Violence against Women and Children must prove that the final acute battering episode was preceded by: ’11 – Q71 (A) 3 battering episodes. (B) 4 battering episodes. (C) 5 battering episodes. (D) 2 battering episodes.

Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said “Salamat Osang” as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? '00 – Q2

Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred – Jack came home drunk and starter hitting Jill. Fearing for her life, Jill left and stayed with her sister. Two days later, Jill returned home and decided to give Jack another chance after he sent her flowers and confectioneries. After several days, however, Jack against came home drunk. The following day, he was found dead. Jill was charged with parricide but raised the defense of “battered woman syndrome.” ’10 – Q19 1. Define “Battered Woman Syndrome.” ’10 – Q19-1

NO, Osang's claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under par. 1, Article 11 of the RPC, It is required inter alia that there be: (1) unlawful aggression, and (2) reasonable necessity of the means employed to prevent or repel it. The unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense. But if the aggression that was begun by the injured or disabled party already ceased to exist when the accused attacked him, as in the case at bar, the attack made is a retaliation, and not a defense. Paragraph 1, Article 11 of the Code does not govern.

“Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and behevioral symptoms found in women in battering relationships as a result of cumulative abuse (Section 3(d), Republic Act No. 9262.)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.

When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took his gun and shot B, killing him. Charged with homicide, A claimed he acted in defense of his daughter's honor. Is A correct? If not, can A claim the benefit of any mitigating circumstance or circumstances? '02 – Q15a

Considering that the RPC provisions on justifying circumstances apply to anyone “who acts on defense on his person or rights.” Can there be self-defense when there is simply an aggression against one’s property, not couple with an attack against his person? ’83 – Q2

NO, A cannot validly invoke defense of his daughter's honor in having killed B since the rape was already consummated; moreover, B already ran away, hence, there was no aggression to defend against and no defense to speak of. A may, however, invoke the benefit of the mitigating circumstance of having acted in immediate vindication of a grave offense to a descendant, his daughter, under par. 5, Article 13 of the RPC, as amended.

NO. Self-defense will be incomplete. Under the Civil Code, there is unlawful aggression on the property rights of another. But to constitute self-defense of property, two other elements must be considered, namely, reasonable necessity of the means employed to repel the aggression and lack of sufficient provocation on the part of the person defending his property. In People v. Apolinar (38 O.G. 2079), it was held that there is no self-defense of property if the attack is not couple with an attack on the person of the owner or possessor of the property. If for example, the owner shot the aggressor although his person was not attacked, self-defense of property will not be present, although there is unlawful aggression on his property right, because the means employed is not reasonable (People v. Narvaez, 121 SCRA 389 [1983].)

Defense of Strangers “A” chanced upon three men who were attacking “B” with fist blows. “C”, one of the men, was about to stab “B” with a knife. Not knowing that “B” was actually the aggressor because he had earlier challenged the three men to a fight, “A” shot “C” as the latter was about to stab “B”. May “A” invoke the defense of a stranger as a justifying circumstance in his favor? '00 – Q15b YES. A may invoke the justifying circumstance of defense of stranger since he was not involved in the fight and he shot C when the latter was about to stab B. There being no indication that A was induced by revenge, resentment or any other evil motive in shooting C, his act is justified under par. 3, Article 11 of the RPC, as amended.

When A saw B rushing towards him holding a bolo and poised to strike him, he immediately picked up a pointed iron bar and believing that his life was in danger and B was close enough, he made a thrust on B hitting him on the stomach which cause the death of B thereafter. The truth, however, is that B was merely trying to play a joke on C who was then behind A. Is A criminally liable for the death of B? ’77 – Q1a

Avoidance of Greater Evil or Injury / State of Necessity To save himself from crashing into an unlighted truck abandoned on the road, Jose swerved his car to the right towards the graveled shoulder, killing two bystanders. Is he entitled to the justifying circumstance of state of necessity? ’11 – Q43 (A) No, because the bystanders had nothing to do with the abandoned truck on the road. (B) No, because the injury done is greater than the evil to be avoided. (C) Yes, since the instinct of self-preservation takes priority in an emergency. (D) Yes, since the bystanders should have kept off the shoulder of the road.

A is not criminally liable because he acted in self-defense due to mistake of facts. As the facts of the problem state, A thrust the pointed iron bar on B, hitting him on the stomach as he believed that his life was in danger because B was close enough when he rushed towards A holding a bolo and poised to strike him (People v. Ah Chong, 15 Phil. 448 [1910].) Under the circumstances, he had no time or opportunity to verify whether B was only playing a joke on C who was behind A. Hence, his mistake of the facts was without fault or carelessness. He had no alternative but to take the facts as they appeared to hi, to justify his act. So A acted in good faith without criminal intent.

BB and CC, both armed with knives, attacked FT. The victim's son, ST, upon seeing the attack, drew his gun but was prevented from shooting the attackers by AA, who grappled with him for possession of the gun. FT died from knife wounds. AA, BB and CC were charged with murder. In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury, contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil. Will AA's defense prosper? '04 – Q3a

Defense of Relatives Pedro is married to Tessie. Juan is the first cousin of Tessie, while in the market, Pedro saw a man stabbing Juan. Seeing the attack on Juan, Pedro picked up a spade nearby and hit the attacker on his head which caused the latter's death. Can Pedro be absolved of the killing on the ground that it is in defense of a relative? Explain. (5%) ’16 – Q3

NO, AA's defense will not prosper because obviously there was a conspiracy among BB, CC and AA, such that the principle that when there is a conspiracy, the act of one is the act of all, shall govern. The act of ST, the victim's son, appears to be a legitimate defense of relatives; hence, justified as a defense of his father against the unlawful aggression by BB and CC. ST's act to defend his father's life, cannot be regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act. What AA did was to stop a lawful defense, not greater evil, to allow BB and CC achieve their criminal objective of stabbing FT.

No. The relatives of the accused for purpose of defense of relative under Article 11 (2) of the Revised Penal Code are his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree. Relative by affinity within the same degree includes the ascendant, descendant, brother or sister of the spouse of the accused. In this case, Juan is not the ascendant, descendant, brother or sister of Tessie, the spouse of Pedro. Relative by consanguinity within the fourth civil degree includes first cousin* But in this case Juan is the cousin of Pedro by affinity but not by consanguinity. -'Juan, therefore, is not a relative of Pedro for purpose of applying the provision on defense of relative. Pedro, however, can invoke defense of a stranger. Under the revised Penal Code, a person who defends a person who is not his relative may invoke the defense of a stranger provided that all its elements exist, to wit: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel the attack; and (c) the person defending be not induced by revenge, resentment, or other evil motive.

Fulfillment of Duty or Lawful Exercise of Right or Office Lucresia, a store owner, was robbed of her bracelet in her home. The following day, at about 5 PM, a neighbor, 22-year old Jun-Jun, who had an unsavory reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around the right arm of Jun-Jun. As soon as the latter left, Lucresia went to a nearby police station and sought the help of a policeman on duty, Pat. Willie Reyes. He went with Lucresia to the house of Jun-Jun to confront the latter. Pat. Reyes introduced himself as a policeman and tried to get hold of Jun-Jun who resisted and ran away. Pat. Reyes chased him and fired two warning shots in the air. Jun-Jun

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers continued to run and when he was about 7 meters away, Pat, Reyes shot him in the right leg. Jun-Jun was hit and he fell down but he crawled towards a fence, intending to pass through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot at Jun-Jun hitting him at the right lower hip. Pat. Reyes brought Jun-Jun to the hospital, but because of profuse bleeding, he eventually died. Pat Reyes was subsequently charged with homicide. During the trial, Pat Reyes raised the defense, by way of exoneration, that he acted in the fulfillment of a duty. Is the defense tenable? '00 – Q6a

The effect of the diagnosis made by NCMH is possibly a suspension of the proceedings against Romeo and his commitment to an appropriate institution for treatment until he could already understand the proceedings. Minority Lito, a minor, was bullied by Brutus, his classmate. Having had enough, Lito got the key to the safe where his father kept his licensed pistol and took the weapon. Knowing that Brutus usually hung out at a nearby abandoned building after class, Lito went ahead and hid while waiting for Brutus. When Lito was convinced that Brutus was alone, he shot Brutus, who died on the spot. Lito then hid the gun in one of the empty containers. At the time of the shooting, Lito was fifteen years and one month old. What is Lito's criminal liability? Explain. (4%) ’15-Q18

NO, the defense of Pat. Reyes is not tenable. The defense of having acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed be the unavoidable or necessary consequence of the due performance of the duty (People v. Oanis, 74 Phil. 257 [1943].) It is not enough that the accused acted in fulfillment of a duty. After Jun-Jun was shot in the right leg and was already crawling, there was no need for Pat, Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which brought about the cause of death of the victim.

ANSWER:Lito is criminally liable for murder qualified by the circumstance of treachery, or evident premeditation, as well as illegal possession of firearms. Minority is not exempting under Section 7 of RA No. 9644 since his age is above fifteen years but below eighteen years and he acted with discernment. Circumstance will show that he discerned the consequences of his criminal act as shown from the fact he employed means to make a surprise attack and he even hid the murder weapon in an empty container. It was also clear that he planned the killing. However, minority will be considered as a privileged mitigating circumstance, which will require the graduation of the penalty prescribed by law to one degree lower (Article 68).

Exempting Circumstances What is now the age of doli incapax in the Philippines? (2%) – ‘17 SUGGESTED ANSWER (c) If the accused is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). With or without discernment, the accused of such age is exempt from criminal liability. Lack of discernment is conclusively presumed. Hence, the age of doli incapax in the Philippines is now 15 years of age or under.

What is the minimum age of criminal responsibility? ’12 – Q29 a) fifteen (15) years old or under b) nine (9) years old or under c) above nine (9) years old and under fifteen (15) who acted with discernment d) above fifteen ( 15) years old and under eighteen ( 18) who acted with discernment SUGGESTED ANSWER: d) above fifteen ( 15) years old and under eighteen ( 18) who acted with discernment A child above fifteen (15) years but below eighteen (18) years of age shall be exempt from criminal liability unless he / she has acted with discernment (Section 6 of RA No. 9344).

Distinguish clearly but briefly: Between justifying and exempting circumstances in criminal law. '04 – Q10(2) Justifying circumstance affects the act, not the actor; while exempting circumstance affects the actor, not the act. In justifying circumstance, no criminal and, generally, no civil liability is incurred; while in exempting circumstance, civil liability is generally incurred although there is no criminal liability. Insanity As a modifying circumstance, insanity: ’11 – Q7 (A) is in the nature of confession and avoidance. (B) may be presumed from the offender’s previous behavior. (C) may be mitigating if its presence becomes apparent subsequent to the commission of the crime. (D) exempts the offender from criminal liability whatever the circumstances.

Minority is a privileged mitigating circumstance which operates to reduce the penalty by a degree where the child is: ’11 – Q32 (A) 15 years and below acting without discernment. (B) above 15 years but below 18 acting without discernment. (C) below 18 years acting with discernment. (D) 18 years old at the time of the commission of the crime acting with discernment.

While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid, Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s quarters. The following day, Romeo was found catatonic inside the maid’s quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense. ’10 – Q13 1. Will Romeo’s defense of insanity prosper? ’10 – Q13-1

While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at Pomping with a ball pen. The top of the ballpen hit the right eye of Pomping which bled profusely. Realizing what she had caused. Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping's eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye. ’00 – Q4 1. Is Katreena criminally liable? ’00 – Q4-1

NO. Romeo’s defense of insanity will not prosper because, even assuming that Romeo was “insane” when diagnosed after he committed the crime, insanity is a defense to the commission of a crime must have existed and proven to be so existing at the precise moment when the crime was being committed. The facts of the case indicate that Romeo committed the crime with discernment. 2.

NO, Katreena is not criminally liable although she is civilly liable. Being a minor less than fifteen (15) years old although over nine (9) years of age, she is absolutely exempt from criminal liability. Under Section 6 of R.A. No. 9344, 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.

What is the effect of the diagnosis of the NCMH on the case? ’10 – Q13-2

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 2.

Discuss the attendant circumstances and effects thereof. '00 – Q4-2

(D) This serves as aggravating circumstance of concealment of weapon.

The minority of the accused is an exempting circumstance under Article 12, paragraph 3, RPC, as modified by Section 6 of R.A. No. 9344, where she shall be exempt from criminal liability. She is however civilly liable. Assuming that she was above fifteen (15) years old but below eighteen (18) years of age at the time of the commission of the offense and she acted with discernment, the attendant circumstances which may be considered are: 1. If found criminally liable, the minority of the accused as a privileged mitigating circumstance. A discretionary penalty lower by at least one (1) degree than that prescribed for the crime committed shall be imposed in accordance with Article 68, paragraph 1, RPC. The sentence, however, should automatically be suspended in accordance with Section 38 of R.A. No. 9344 otherwise known as the “Juvenile Justice and Welfare Act of 2006”; 2. Also if found criminally liable, the ordinary mitigating circumstance of not Intending to commit so grave a wrong as that committed, under Article 13, paragraph 3, RPC; and 3. The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act.

The statement that “Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code” is FALSE. ’09 – Q11b Voluntary surrender may not be appreciated in cases of criminal negligence under Article 365 since in such cases, the courts are authorized to impose a penalty without considering Article 62 regarding mitigating and aggravating circumstances. After killing the victim, the accused absconded. He succeeded in eluding the police until he surfaced and surrendered to the authorities about two years later. Charged with murder, he pleaded not guilty but, after the prosecution had presented two witnesses implicating him to the crime, he changed his plea to that of guilty. Should the mitigating circumstances of voluntary surrender and plea of guilty be considered in favor of the accused? '97 – Q5 Voluntary surrender should be considered as a mitigating circumstance. After two years, the police were still unaware of the whereabouts of the accused and the latter could have continued to elude arrest. Accordingly, the surrender of the accused should be considered mitigating because it was done spontaneously, indicative of the remorse or repentance on the part of said accused and therefore, by his surrender, the accused saved the Government expenses, efforts, and time. Plea of guilty can no longer be appreciated as a mitigating circumstance because the prosecution had already started with the presentation of its evidence (Article 13, par. 7, RPC.)

Mitigating Circumstances In General The presence of a mitigating circumstance in a crime: ’11 – Q4 (A) increases the penalty to its maximum period. (B) changes the gravity of the offense. (C) affects the imposable penalty, depending on other modifying circumstances. (D) automatically reduces the penalty.

Alternative Answer: Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a time to consider the surrender as spontaneous (People v. Ablao, 183 SCRA 658 [1990].) For sure the government had already incurred considerable efforts and expenses in looking for the accused.

Voluntary Surrender A killed M. After the killing, A went to the Barangay Chairman of the place of incident to seek protection against the retaliation of M's relatives. May voluntary surrender be appreciated as a mitigating circumstance in favor of A? ’12 – Q21 a) Yes. A surrendered to the Barangay Chairman who is a person in authority. b) Yes. The surrender of A would save the authorities the trouble and expense for his arrest. c) No. A did not unconditionally submit himself to the authorities in. order to acknowledge his participation in the killing or to save the authorities the trouble and expenses necessary for his search and capture. d) No. The surrender to the Barangay Chairman is not a surrender to the proper authorities. SUGGESTED ANSWER: c) No. A did not unconditionally submit himself to the authorities in. order to acknowledge his participation in the killing or to save the authorities the trouble and expenses necessary for his search and capture. Surrender is not voluntary where the accused went to Barangay Chairman after the killings to seek protection against retaliation of the victim’s relatives. As such, accused did not unconditionally submit himself to the authorities in order to acknowledge his participation in the killings or in order to save the authorities the trouble and expense for his arrest. Surrender is not mitigating (People vs. Del Castillo, G.R. No. 169084, January 18, 2012).

Voluntary Confession of Guilt In order that the plea of guilty may be mitigating, what requisites must be complied with? '99 – Q10a For plea of guilty to be mitigating, the requisites are: 1. That the accused spontaneously pleaded guilty to the crime charged; 2. That such plea was made before the court competent to try the case and render judgment; and 3. That such plea was made prior to the presentation of evidence for the prosecution. An accused charged with the crime of homicide pleaded “not guilty” during the preliminary investigation before the MTC. Upon the elevation of the case to the RTC of competent jurisdiction, he pleaded guilty freely and voluntarily upon arraignment. Can his plea of guilty before the RTC be considered spontaneous and thus entitle him to the mitigating circumstance of spontaneous plea of guilty under Article 13(7), RPC? '99 – Q10b YES, his plea of guilty before the Regional Trial Court can be considered spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty. His plea of not guilty before the Municipal Court is immaterial as it was made during preliminary investigation only and before a court not competent to render judgment.

After properly waiving his Miranda rights, the offender led the police to where he buried the gun he used in shooting the victim. How does this affect his liability? ’11 – Q65 (A) This serves as an analogous mitigating circumstance of voluntary surrender. (B) It has no effect at all since the law provides none. (C) He is considered to have confessed to murder.

Immediate Vindication of a Grave Offense The mitigating circumstance of immediate vindication of a grave offense cannot be appreciated in a case where: ’11 – Q42 (A) Following the killing of his adopted brother, P went to the place where it happened and killed S whom he found there. (B) X kills Y who attempted to rape X’s wife.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (C) P severely maltreats S, a septuagenarian, prompting the latter to kill him. (D) M killed R who slandered his wife.

effect of applying the divisible penalty in its minimum period. Under the rules on graduation of penalty (Article 68 and 69), the presence of privilege mitigating circumstance has the effect reducing the penalty one or two degrees lower. (b) Ordinary mitigating circumstances can be offset by aggravating circumstances. Privileged mitigating circumstances are not subject to the offset rule.

W allowed a man to have sex with her thinking that he was her husband. After realizing that the man was not her husband, W stabbed him to death. Under the circumstances, the mitigating circumstance in attendance constitutes: ’11 – Q63 (A) defense of honor. (B) immediate vindication of a grave offense. (C) passion or obfuscation. (D) self-defense.

Aggravating Circumstances 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%) ’17 – Q7 SUGGESTED ANSWER The phrase "on occasion of such performance" used in Article t 48 of RPC means "by reAson of the past performance of official duty because the purpose of the law is to allow them to discharge their duties without fear of being assaulted by reason thereof (People v. Renegado, G.R. No. L-27031, May 31, 1974). Attacking Judge Samsonite by reason of past performance of duty of convicting Bernardo based on his assessment of tbe evidences constitutes qualified direct assault (U.S. v. Garcia, G.R. No. 6820, October 16, 1911). Since the single act of attacking Judge Samsonite constitutes direct assault and murder qualified by the circumstance of treachery, the two shall be merged together to form a complex crime of direct assault with murder (People v. Estonilo, Jr., G.R. No. 201565, October 13, 2014; People v. Dural, G.R. No. No. 84921, June 8, 1993; People v. Riuorta, G.R. No. 57415, December 15, 1989). Disregard of rank, being inherent in direct assault, is absorbed. Disregard of age shall not be considered for lack of showing of intent to offend or insult the age of Judge Samsonite (People v. Onabia, G.R. No. 128288, April20, 1999). Dwelling and nighttime shall not be appreciated because the presence of treachery in the instant case absorbs these aggravating circumstances. The crime is not aggravated by cruelty simply because Judge Samson sustained 10 stab wounds. For cruelty to be considered as an aggravating Circumstance, it must be proven that in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the pain and suffering of the victim. The number of wounds inflicted on the victim Is not proof of cruelty (Simangan v. People G.R. No. 157984 July 8, 2004). Unless there is a proof that when the 2nd or subsequent stabs were made, the Judge was still alive, there is no cruelty to speak of.

Passion or Obfuscation Deeply enraged by his wife’s infidelity, the husband shot and killed her lover. The husband subsequently surrendered to the police. How will the court appreciate the mitigating circumstances of (i) passion or obfuscation, (ii) vindication of a grave offense, and (iii) voluntary surrender that the husband invoked and proved? ’11 – Q46 (A) It will appreciate passion or obfuscation and voluntary surrender as one mitigating circumstance and vindication of a grave offense as another. (B) It will appreciate all three mitigating circumstances separately. (C) It will appreciate the three mitigating circumstances only as one. (D) It will appreciate passion or obfuscation and vindication of a grave offense as just one mitigating circumstance and voluntary surrender as another. Without meaning anything, Z happened to stare into the eye of one of four men hanging out by a store which he passed. Taking offense, the four mauled and robbed him of his wages. Z went home, took a knife, and stabbed one of his attackers to death. Charged with murder, Z may raise the mitigating circumstance of: ‘ 11 – Q49 (A) praeter intentionem. (B) incomplete self-defense preceded by undue provocation. (C) passion or obfuscation. (D) complete self-defense. Privileged Mitigating Circumstances Which of the following is not a privilege mitigating circumstance? ‘14-Q15 (A) 17-year-old offender (B) 14-year-old offender (C) incomplete self-defense (D) incomplete defense of a relative (exactly copied from the bar sampler) (C) 14 year-old offender What is a privileged mitigating circumstance? (5%) ’12 – QIIa A privileged mitigating circumstance when present in the commission of a crime shall affect the imposition of the penalty as to decree. Such circumstance is present only in certain offenses and also refers to the circumstance of the offender in a crime against person particularly in self-defense when all the circumstances to justify self-defense are not present. The accused is entitled to a privileged mitigating circumstance. If the offending party is a minor and such minority is present at the time the crime was committed, the same shall likewise be considered as privileged mitigating circumstance. Also, when the crime committed is attended by two or more ordinary mitigating circumstances and there is absence of any aggravating circumstance in the commission of the crime, and the penalty provided by law for the crime committed is a divisible penalty, such ordinary mitigating circumstances will also be considered a privileged mitigating circumstance. There are of course other circumstances aside from what is herein mentioned.

Which of the following circumstances may be taken into account for the purpose of increasing the penalty to be imposed upon the convict? ’12 – Q5 a) Aggravating . circumstances which in themselves constitute a crime specially punishable by law. b) Aggravating circumstances which are inherent in the crime to such a degree that they must of necessity accompany the crime. c) Aggravating circumstances which arise from the moral attributes of the offender. d) Aggravating circumstances which are included by the law in defining a crime. SUGGESTED ANSWER: c) Aggravating circumstances which arise from the moral attributes of the offender. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty thereof shall not be taken into ac-

Distinguish a privileged mitigating circumstance from an ordinary mitigating circumstance as to reduction of penalty and offsetting against aggravating circumstance/s. (5%) ’12 – QIIb The distinction between ordinary and privileged mitigating circumstances are as follows: (a) Under the rules for application of divisible penalties (Article 64 of the Revised Penal Code), the presence of mitigating circumstance, if not offset by aggravating circumstance, has the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers count for the purpose of increasing the penalty. The same rule shall apply with respect to any aggravating circumstances inherit in the crime to such a degree that it must be necessity accompany the commission thereof. Aggravating circumstances which arise from the moral attributes of the offender shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant (Article 62 of the Revised Penal Code). Hence, aggravating circumstance involving moral attributes should be taken into consideration in increasing the penalty to be imposed upon the convict.

g)

That the accused employed such means, methods or manner to ensure his safety from the defensive or retaliatory acts of the victim, and the mode of attack was consciously adopted. h) Actual sudden physical assault or threat to inflict real imminent injury to an unsuspecting victim. SUGGESTED ANSWER: c) That the accused employed such means, methods or manner to ensure his safety from the defensive or retaliatory acts of the victim, and the mode of attack was consciously adopted. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make (Article 14 of the Revised Penal Code).

Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the RTC in Binan, Laguna. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, with what crime will you convict Pocholo? '00 – Q6b

Dwelling Ana visited her daughter Belen who worked as Caloy’s housemaid. Caloy was not at home but Debbie, a casual visitor in the house, verbally maligned Belen in Ana’s presence. Irked, Ana assaulted Debbie. Under the circumstances, dwelling is NOT regarded as aggravating because: ’11 – Q30 (A) Dwelling did nothing to provoke Ana into assaulting Debbie. (B) Caloy, the owner of the house, was not present. (C) Debbie is not a dweller of the house. (D) Belen, whom Debbie maligned, also dwells in the house.

Pocholo should be convicted of the crime of homicide only because the aggravating circumstances which should qualify the crime to murder were not alleged in the Information. The circumstances of using poison, in consideration of a promise or reward, and cruelty which attended the killing of Rico could only be appreciated as generic aggravating circumstances since none of them have been alleged in the information to qualify the killing to murder. A qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such.

At about midnight, A, the accused, attacked fatally, and unarmed, 4’11 girl with a hunting knife while she was alone in her room. What aggravating circumstance or circumstances were present in the commission of the crime? ’76 – Q1a Abuse of superior strength and dwelling. There is abuse of superior strength because the girl was defenceless since she was unarmed and A was armed with a hunting knife, which is a deadly weapon. The abuse of superiority of A lies in his sex and the weapon he used, from which the woman would be unable to defend himself (U.S. v. Consuelo, 13 Phil. 612). Dwelling is also an aggravating circumstance because the girl was attacked in her room. The facts of the problem do not show that she has given any provocation (People v. Pakah, 81 Phil. 426).

Treachery FF and his two (2) sons positioned themselves outside the house of the victim. The two (2} sons stood by the stairs in front of the house, while the father waited at the back. The victim jumped out of the window and was met by FF who instantly hacked him. The two (2) sons joined hacking the victim to death. They voluntarily surrendered to the police. How will the attendant circumstances be properly appreciated? ’12 – Q4 a) Treachery and abuse of superior strength qualify the killing to murder. b) Only treachery qualifies the killing to murder because abuse of superior strength is absorbed by treachery. c) Treachery is the qualifying aggravating circumstance, while abuse of superior strength is treated as a generic aggravating circumstance. d) The qualifying circumstance of treachery or abuse of superior strength can be offset by the mitigating circumstance of voluntary surrender. SUGGESTED ANSWER: b) Only treachery qualifies the killing to murder because abuse of superior strength is absorbed by treachery. Abuse of superior strength is an aggravating circumstance if the accused purposely uses excessive force out of proportion to the means of defense available to the person attacked, of ir there is notorious inequality of forces between the victim and aggressor, and the latter takes advantage of superior strength (People vs. Del Castillo, G.R. No. 169084, January 18, 2012). If the victim is completely defenseless, treachery should be appreciated. When the circumstance of abuse of superior strength occurs with treachery, the former is absorbed in the latter (People vs. Rebucan, G.R. No. 182551, July 27, 2011). What should qualify the crime is treachery as proved and not abuse of superior strength (People vs. Loreto, G.R. No. 137411-13, February 28, 2003). See also People v. Perez, G.R. No. 181409, February 11, 2010.

Abuse of Superior Strength Arthur, Ben, and Cesar quarreled with Glen while they were at the latter’s house. Enraged, Arthur repeatedly stabbed Glen while Ben and Cesar pinned his arms. What aggravating circumstance if any attended the killing of Glen? ’11 – Q3 (A) Evident premeditation. (B) None. (C) Abuse of superior strength. (D) Treachery. Night time At about 9:30 PM, while Dino and Raffy were walking along Padre Faura Street, Manila. Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died, Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide. Can the court appreciate the aggravating circumstances of night time and band? '94 – Q9b NO, night time cannot be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of night time (People v. De los Reyes, 203 SCRA 707 [1991].) Besides, judicial notice can be taken of the fact that Padre Faura Street is well-lighted. However, band should be considered as the crime was committed by more than three armed malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons.

For treachery to qualify killing to murder, the evidence must show: ’12 – Q11 e) The time when the accused decided to employ treachery, the overt act manifestly indicating that he clung to such determination, and a sufficient lapse of time between the decision and the execution, allowing him to reflect upon the consequence of his act. f) Unlawful aggression, reasonable necessity of the means to prevent or repel the aggression, and lack of sufficient provocation on the part of the victim.

By a Band

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers When is a crime deemed to have been committed by a band? ’12 Q32 a) When armed men, at least four (4) in number, take direct part in the execution of the act constituting the crime. b) When three (3) armed men act together in the commission of the crime. c) When there are four ( 4) armed persons, one of whom is a principal by inducement. d) When there are four (4) malefactors, one of whom is armed. SUGGESTED ANSWER: a) When armed men, at least four (4) in number, take direct part in the execution of the act constituting the crime. There are three elements of band under Article 14 [6] of the Revised Penal Code, to wit: (1) there must be at least four malefactors, (2) at least four of them are armed (People vs. Solamillo, G.R. NO. 123161, June 18, 2003, En Banc), and (3) at least four of them take part or acted together in the commission of crime. In People vs. Lozano, September 29, 2003, G.R> No. 137370-71, the Supreme Court En Banc stated that the four armed persons contemplated in the circumstance of band must all be principals by direct participation who acted together in the execution of the acts constituting the crime.

with Homicide. And the crimes specified as basis for habitual includes, inter alia, theft and robbery. Distinguish between recidivism and quasi-recidivism. '98 – Q8(1) In recidivism – 1. The convictions of the offender are for crimes embraced in the same Title of the Revised Penal Code; and 2. This circumstance is generic aggravating and therefore can be effect by an ordinary mitigating circumstance. Whereas in quasi-recidivism – 1. The convictions are not for crimes embraced in the same Title of the Revised Penal Code, provided that it is a felony that was committed by the offender before serving sentence by final judgment for another crime or while serving sentence for another crime; and 2. This circumstance is a special aggravating circumstance which cannot be offset by any mitigating circumstance. At about 9:30 PM, while Dino and Raffy were walking along Padre Faura Street, Manila. Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died, Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide. Can the court appreciate the aggravating circumstances of night time and band? '94 – Q9b

Recidivism During trial for theft in 2014, the prosecution managed to show that accused AA has also been convicted by final judgment for robbery in 2003, but she eluded capture. A subsequent verification showed that AA had several convictions, to wit: (1.) In 1998, she was convicted of estafa; (2.) In 2002, she was convicted of theft; (3.) In 2004, she was convicted of frustrated homicide; The judge trying the theft case in 2014 is about to convict AA. What circumstances affecting the liability or penalty may the judge appreciate against AA? ’14 - Q21-3

NO, night time cannot be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of night time (People v. De los Reyes, 203 SCRA 707 [1991].) Besides, judicial notice can be taken of the fact that Padre Faura Street is well-lighted. However, band should be considered as the crime was committed by more than three armed malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons. . Quasi-Recidivism

A: The judge may appreciate the aggravating circumstance of recidivism. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Robbery, theft and estafa are crimes against property embraced in Title Ten of the Revised Penal Code Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist. ’09 – Q1a

B was convicted by final judgment of theft. While serving sentence for such offense, B was found in possession of an unlicensed firearm. Is B a quasi-recidivist? ’12 – Q16 a) B is a quasi-recidivist because he was serving sentence when found in possession of an unlicensed firearm. b) B is not a quasi-recidivist because the offense for which he was serving sentence is different from the second offense. c) B is not a quasi-recidivist because the second offense is not a felony. d) B is not a quasi-recidivist because the second offense was committed while still serving for the first offense. SUGGESTED ANSWER: c) B is not a quasi-recidivist because the second offense is not a felony. A quasi-recidivist is a person who shall commit a “felony” after having been convicted by final judgment while serving his sentence (Article 160 of the Revised Penal Code). “B” is not a quasi-recidivist since he did not commit a felony while serving sentence. Illegal possession of unlicensed firearm committed by “B” is an offense punishable by special law and not felony under the Revised Penal Code.

TRUE. Rape is now a crime against persons and, like the crime of homicide, is embraced in the same Title of the Revised Penal Code under which Amado had been previously convicted by final judgment. The absolute pardon granted him for rape, only excused him from serving the sentence for rape but did not erase the effects of the conviction therefore unless expressly remitted by the pardon. Juan de Castro already had three (3) previous convictions by final judgment for theft when he was found guilty of Robbery with Homicide. In the last case, the trial Judge considered against the accused both recidivism and habitual delinquency. The accused appealed and contended that in his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of habitual delinquency. Is the appeal meritorious? ’01 – Q3 NO, the appeal is not meritorious. Recidivism and habitual delinquency are correctly considered in this case because the basis of recidivism is different from that of habitual delinquency. Juan is a recidivist because he had been previously convicted by final judgment for theft and again found guilty for Robbery with Homicide, which are both crimes against property, embraced under the same Title (Title Ten, Book Two) of the Revised Penal Code. The implication is that he is specializing in the commission of crimes against property, hence, aggravating in the conviction for Robbery with Homicide. Habitual delinquency, which brings about an additional penalty when an offender is convicted a third time or more for specified crimes, is correctly considered because Juan had already three (3) previous convictions by final judgment for theft and again convicted for Robbery

ALTERNATIVE ANSWER: a) B is a quasi-recidivist because he was serving sentence when found in possession of an unlicensed firearm. is a quasi-recidivist. The penalty for illegal possession of firearm (prision correccional in its maximum period for low powered firearm or prision mayor in its minimum period for high powered firearm) were taken from the Revised Penal Code; hence, although PD No. 1866 is a special law, for determining the proper period (People vs. Feloteo, G.R. No. 124212, June 5, 1998) one of which is the application of penalty in its maximum period due to the circumstance of quasi-recidivism. Although CA Justice Luis Reyes and Justice Regalado opined that the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers second crime must be a felony to appreciate quasi-recidivism because Article 160 speaks of a “felony”, the Supreme Court in People vs. Salazar, G.R. No. 98060 January 27, 1997 appreciated quasi-recidivism against the accused, who committed an offense under RA No. 6425. Hence, “A” is the answer.

(D) cruelty A qualifying aggravating circumstance: ’11 – Q66 (A) changes the description and the nature of the offense. (B) increases the penalty to its next degree but absorbs all the other aggravating circumstances. (C) raises the penalty by two periods higher. (D) is one which applies only in conjunction with another aggravating circumstance.

Habitual Delinquency Who is a habitual delinquent? (5%) ’12 - QVIIIa A habitual delinquent is one who is convicted of a crime of falsification, estafa, robbery, serious physical injuries and theft. If the offender within ten years from his last conviction or within ten years from his release from jail of any of the offenses enumerated, shall have a conviction for the third of said offenses, he shall be considered a habitual delinquent.

The statement that “The use of an unlicensed firearm is considered a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance” is FALSE. ’09 – Q1c

Give at least 4 distinctions between habitual delinquency and recidivism. Can a person be a habitual delinquent without being a recidivist? ’86 – Q5; ’12 – Q8b

Offsetting may not take place because an unlicensed firearm in homicide or murder is a specific aggravating circumstance as provided in R.A. No. 8294. It is not one of the generic circumstances under Article 14 of the Revised Penal Code (People v. Avecilla, 351 SCRA 635 [2001].)

The four distinctions between habitual delinquency and recidivism are: 1.

Nature of crime – In habitual delinquency, the crimes are specified, which are robbery, theft, estafa, falsification, serious and less serious physical injuries. In recidivism, the crimes are embraced in the same title of the RPC. 2. Time element – In recidivism, no period of time is fixed between the former conviction and the last conviction. In habitual delinquency, conviction of any of the specified crimes must take place within ten (10) years from the last conviction or release. 3. Number of crimes – In recidivism, it is enough that there be a second conviction of any crime embraced in the same title of the last or the first crime. In habitual delinquency, there must be at least a third conviction of any of the specified crimes. 4. Nature of aggravating circumstances – Recidivism is an aggravating circumstance and, if not offset, serves to increase the penalty. Habitual delinquency provides for the imposition of an additional penalty. There may be habitual delinquency without recidivism if the three convictions refer to crimes not embraced in the same title of the Code, like robbery in the first conviction, a crime against property; falsification, the second conviction, a crime against public interest; and serious physical injuries, the third conviction, a crime against persons.

When would qualifying circumstances be deemed, if at all, elements of a crime? '03 – Q4b A qualifying circumstance would be deemed an element of a crime when 1. It changes the nature of the crime, bringing about a more serious crime and a heavier penalty; 2. It is essential to the crime involved, otherwise some other crime is committed; and 3. It is specifically alleged in the Information and proven during the trial. Alternative Answer: A qualifying circumstance is deemed an element of a crime when it is specifically stated by law as included in the definition of a crime, like treachery in the crime of murder. Name the four (4) kinds of aggravating circumstances and state their effect on the penalty of crimes and nature thereof. '99 – Q9a The four (4) kinds of aggravating circumstances are: 1. GENERIC AGGRAVATING or those that can generally apply to all crimes, and can be offset by mitigating circumstances, but if not offset, would affect only the maximum of the penalty prescribed by law; 2. SPECIFIC AGGRAVATING or those that apply only to particular crimes and cannot be offset by mitigating circumstances: 3. QUALIFYING CIRCUMSTANCES or those that change the nature of the crime to a graver one, or brings about a penalty next higher in degree, and cannot be offset by mitigating circumstances; 4. INHERENT AGGRAVATING or those that essentially accompany the commission of the crime and do not affect the penalty whatsoever.

Cruelty Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly undressed her and tied her legs to the bed. He also burned her face with a lighted cigarette. Like a madman, he laughed while raping her. What aggravating circumstances are present in this case? ’94 – Q8 Cruelty, for burning the victim's face with a lighted cigarette, thereby deliberately augmenting the victim's suffering by acts clearly unnecessary to the rape, while the offender delighted and enjoyed seeing the victim suffer in pain (People v. Lucas, 181 SCRA 316 [1990].) Relationship, because the offended party is a descendant (daughter) of the offender and considering that the crime is one against persons.

Distinguish generic aggravating circumstance from qualifying aggravating circumstance. '99 – Q9b

Uninhabited Place

Generic Aggravating Circumstances: 1. Affects only the imposition of the penalty prescribed, but not the nature of the crime committed; 2. Can be offset by ordinary mitigating circumstances; 3. Need not be alleged in the Information as long as proven during the trial, the same shall be considered in imposing the sentence. Qualifying Aggravating Circumstances: 1. Must be alleged in the Information and proven during trial; 2. Cannot be offset by mitigating circumstances; 3. Affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed.

The aggravating circumstance of uninhabited place is aggravating in murder committed: ’11 – Q47 (A) on a banca far out at sea. (B) in a house located in cul de sac. (C) in a dark alley in Tondo. (D) in a partly occupied condominium building. Kinds of Aggravating Circumstances Which of the following is not a qualifying aggravating circumstance? ‘14-Q20 (A) treachery (B) evident premeditation (C) dwelling

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Alternative Circumstances

Example of Entrapment: A, an anti-narcotic agent of the Government acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then issued marked money to B who handed a sachet of shabu to B. Thereupon, A signaled his antinarcotic team to close-in and arrest B. This is a case of entrapment because the criminal mind is in B already when A transacted with him. Example of Instigation: Because the members of an anti-narcotic team are already known to drug pushers. A, the team leader, approached and persuaded B to act as a buyer of shabu and transact with C, the suspected drug pusher. For the purpose, A gave B marked money to be used in buying shabu from C. After C handed the sachet of shabu to B and the latter handed the marked money to C, the team closed-in and placed B and C under arrest. Under the facts, B is not criminally liable for his participation in the transaction because he was acting only under instigation by the law enforcers.

A was invited to a drinking spree by friends. After having had a drink too many, A and B had a heated argument, during which A stabbed B. As a result, B suffered serious physical injuries. May the intoxication of A be considered aggravating or mitigating? '02 – Q1 The intoxication of A may be prima facie considered mitigating since it was merely incidental to the commission of the crime. It may not be considered aggravating as there is no clear indication from the facts of the case that it was habitual or intentional on the part of A. Aggravating circumstances are not to be presumed; they should be proved beyond reasonable doubt. The alternative circumstance of relationship shall NOT be considered between: ’11 – Q2 (A) mother-in-law and daughter-in-law. (B) adopted son and legitimate natural daughter. (C) aunt and nephew. (D) stepfather and stepson.

Liabilities of Principals, Accomplices and Accessories While walking alone on her way home from a party, Mildred was seized at gun point by Felipe and taken on board a tricycle to a house some distance away. Felipe was with Julio, Roldan, and Lucio, who drove the tricycle.

Absolutory Causes

At the house, Felipe, Julio, and Roldan succeeded in having sexual intercourse with Mildred against her will and under the threat of Felipe's gun. Lucio was not around when the sexual assaults took place as he left after bringing his colleagues and Mildred to their destination, but he returned everyday to bring food and the news in town about Mildred's disappearance. For five days, Felipe, Julio and Roldan kept Mildred in the house and took turns in sexually assaulting her. On the 6th day, Mildred managed to escape; she proceeded immediately to the nearest police station and narrated her ordeal.

A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is being used by B as a bank for coins from inside their locked cabinet using their common key. Forthwith, A broke the coconut shell outside of their home in the presence of his friends. ’00 – Q11 1. What is the criminal liability of A, if any? ’00 – Q11-1 A is criminally liable for Robbery with force upon things, because the coconut shell with the coins inside, was taken with intent to gain and broken outside of their home (Article 299(b)(2), RPC). 2.

What crime/s did Felipe, Julio, Roldan, and Lucio commit and what was their degree of participation? (7%) ’13-Q2

Is A exempted from criminal liability under Article 332 of the RPC for being a brother of B? '00 – Q11-2

SUGGESTED ANSWER: Felipe, Julio, Roldan and Lucio are all liable for the special complex crime of kidnapping and serious illegal detention with rape. It was sufficiently proved that the four accused kidnapped Mildred and held her in detention for five days and carnally abused her. Notably, however, no matter how many rapes had been committed in the special complex crime of kidnapping with rape, the resultant crime is only one kidnapping with rape. The composite acts are regarded as a single indivisible offense with only one penalty. The offense is not forcible abduction with rape since it was obvious that the intent is to detain the victim.

NO, A is not exempt from criminal liability under Article 332 because said Article applies only to theft, swindling or malicious mischief. Here, the crime committed is robbery. Entrapment v. Instigation The police officer in civilian clothes asked X where he can buy shabu. X responded by asking the officer how much of the drug he needed. When he told him, X left, returned after a few minutes with the shabu, gave it to the officer, and took his money. X is: ’11 – Q10 (A) liable for selling since the police operation was a valid entrapment. (B) not liable for selling since the police operation was an invalid entrapment. (C) liable for selling since the police operation was a valid form of instigation. (D) not liable since the police operation was an invalid instigation.

As to the degree of their participation, all of them are principally liable because of implied conspiracy as they acted toward a single criminal design or purpose (People v. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Albeit, Lucio was not around when the sexual assault took place, his complicity is evident as he was the one who drove the tricycle and returned everyday to bring food and news to his cohorts.

Distinguish fully between entrapment and instigation in Criminal Law. Exemplify each. '03 – Q7

Principal Mr. Red was drinking with his buddies, Mr. White and Mr. Blue when he saw Mr. Green with his former girlfriend, Ms. Yellow. Already drunk, Mr. Red declared in a loud voice that if he could not have Ms. Yellow, no one can. He then proceeded to the men’s room but told Mr. White and Mr. Blue to take care of Mr. Green. Mr. Blue and Mr. White asked Mr. Red what he meant but Mr. Red simply said, "You already know what I want," and then left. Mr. Blue and Mr. White proceeded to kill Mr. Green and hurt Ms. Yellow. ’14 - Q22 (A) What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the death of Mr. Green? ’14 – Q22a A: Mr. Blue and Mr. White are liable for the death of Mr. Green as principals by direct participation. They were the ones who participated in the criminal resolution and who carried out their plan and personally

In ENTRAPMENT 1. The criminal design originates from and is already in the mind of the lawbreaker even before entrapment; 2. The law enforcers resort to ways and means for the purpose of capturing the lawbreaker in flagrante delicto; and 3. This circumstance is no bar to prosecution and conviction of the lawbreaker. In INSTIGATION 1. The idea and design to bring about the commission of the crime originated and developed in the mind of the law enforcers; 2. The law enforcers induce, lure, or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime; and 3. This circumstance absolves the accused from criminal liability (People v. Marcos, 185 SCRA 154 [1990].)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers took part in its execution by acts which directly tended to the same end. Mr. Red cannot be held criminally liable as principal by inducement because his statement that Mr. Blue and Mr. White are to take care of Mr. Green was not made directly with the intentio of procuring the commission of the crime. There is no showing that the words uttered by him may be considered as so efficacious and powerful so as to amount to physical or moral coercion (People v. Assad GR No. L-33673). Neither is there evidence to show that Mr. Red has an ascendancy or influence over Mr. White and Mr. Blue (People v Abarri GR No. 90815).

If I were Jonas' and Jaja's lawyer, I will use the following defenses: 1. 2.

(B) What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the injuries of Ms. Yellow? ’14 – Q22b

3.

If you were the Judge, how would you decide the case? ’00 – Q14-3

I would convict Jonas as principal by direct participation and Jaja as co-principal by indispensable cooperation for the complex crime of murder with homicide. Jaja should be held liable as co-principal and not only as an accomplice because he knew of Jonas' criminal design even before he lent his firearm to Jonas and still he concurred in that criminal design by providing the firearm.

A: Mr Blue and Mr White are liable as principals by direct participation for the crime of physical injuries for hurting Ms. Yellow to the extent of the injuries inflicted. Having no participation in the attack upon Ms. Yellow, Mr. Red would have no criminal liability therefor. A asked B to kill C because of a grave injustice done to A by C. A promised B a reward. B was willing to kill C, not so much because of the reward promised to him but because he also had his own long-standing grudge against C, who had wronged him in the past. If C is killed by B, would A be liable as a principal by inducement? '02 – Q2

X, after promising Y to give P10,000, induced the latter (Y) to kill Z, who at the time was vacationing in an isolated island in the sea which can be easily be reached by a boat. W, who owns the only motor boat in the locality, offered to transport and actually transported Y to said island. Upon reaching the island, Y killed Z. Indicate whether X, Y and W is a principal or accomplice in the commission of the crime. ’76 – Q2a

NO. A would not be liable as a principal by inducement because the reward he promised B is not the sole impelling reason which made B to kill C. To bring about criminal liability of a co-principal, the inducement made by the inducer must be the sole consideration which caused the person induced to commit the crime and without which the crime would not have been committed. The facts of the case indicate that B, the killer supposedly induced by A, had his own reason to kill C out of a long standing grudge.

X is a principal by inducement. By promising to give P10,000.00 to kill Z, which is an agreement for a consideration, the inducement was made directly with the intention of procuring the commission of the crime. Further, the facts show that Y has no personal reason to kill Z except the inducement, which is therefore, the determining cause for the commission of the crime by Y (People v. Kiichi Omine, 61 Phil. 609 [1935].) Y is a principal by direct participation because he killed Z pursuant to the inducement or agreement for a consideration and he, therefore, personally took part in the execution of the act constituting the crime (Article 17, par. 1, RPC.) W is neither a principal nor an accomplice. Although W offered and actually transported Y to the island where Z was vacationing as he owns only the motor boat in the locality, the facts of the problem do not show that W has any knowledge of the criminal design nor purpose of Y. To be a principal by indispensable cooperation, it is essential that there be either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime. This means participation in the criminal resolution of Y, the principal by direct participation. W is not a principal by direct participation because he did not participate directly in the execution of the act constituting the crime. Clearly, he also is not a principal by inducement because he did not induce Y to kill Z. W is not an accomplice because he has also no knowledge of the criminal design of Y, the principal by direct participation. If W has knowledge of the criminal purpose of Y then he will be a principal by indispensable cooperation because he cooperated in the commission of the crime of Y, which is transporting of Y to the island in his boat which is the only one in the locality, without which the crime would not have been committed (Article 17, par. 3, RPC).

Despite the massive advertising campaign in media against firecrackers and gun-firing during the New Year's celebrations, Jonas and Jaja bought 10 boxes of super lolo and pla-pla in Bocaue, Bulacan. Before midnight of December 31, 1999, Jonas and Jaja started their celebration by having a drinking spree at Jonas’ place by exploding their high-powered firecrackers in their neighborhood. In the course of their conversation, Jonas confided to Jaja that he has been keeping a long-time grudge against his neighbor Jepoy in view of the latter's refusal to lend him some money. While under the influence of liquor, Jonas started throwing lighted super lolos inside Jepoy's fence to irritate him and the same exploded inside the latter's yard. Upon knowing that the throwing of the super lolo was deliberate, Jepoy became furious and sternly warned Jonas to stop his malicious act or he would get what he wanted. A heated argument between Jonas and Jepoy ensued but Jaja tried to calm down his friend. At midnight, Jonas convinced Jaja to lend him his .45 caliber pistol so that he could use it to knock down Jepoy and to end his arrogance. Jonas thought that after all, explosions were everywhere and nobody would know who shot Jepoy. After Jaja lent his firearm to Jonas, the latter again started throwing lighted super lolos and pla-plas at Jepoy's yard in order to provoke him so that he would come out of his house. When Jepoy came out, Jonas immediately shot him with Jaja's .45 caliber gun but missed his target. Instead, the bullet hit Jepoy's 5-year old son who was following behind him, killing the boy instantaneously. ’00 – Q14 1. What crime or crimes can Jonas and Jaja be charged with? ’00 – Q14-1

Conspiracy Define conspiracy. (5%) ’12 – QIXa When two or more persons come to an agreement concerning the commission of a felony and decide to commit it, there is conspiracy.

Jonas and Jaja, can be charged with the complex crime of attempted murder with homicide because a single act caused a less grave and a grave felony (Article 48, RPC.) 2.

That the accused had no intention to commit so grave a wrong as that committed as they merely intended to frighten Jepoy; That Jonas committed the crime in a state of intoxication thereby impairing his will power or capacity to understand the wrongfulness of his act. Non-intentional intoxication is a mitigating circumstance (People v. Fortich, 281 SCRA 600 (1997); Article 15, RPC.)

Ricky was reviewing for the bar exam when the commander of a vigilante group came to him and showed him a list of five policemen to be liquidated by them for graft and corruption. He was further asked if any of them is innocent. After going over the list, Ricky pointed to two of the policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable? ’08 – Q11

If you were Jonas' and Jaja's lawyer, what possible defenses would you set up in favor of your clients? ’00 – Q14-2

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers NO, there was no conspiracy between Ricky and the Commander of the vigilante group. Mere vouching for the honesty of the two (2) policemen in the list cannot make him a co-conspirator for the killing. Ricky enjoys the presumption of innocence.

Accomplices are those persons who, not being a principal, cooperate in the execution of the offense by previous or simultaneous acts (Article 18). He is an accomplice who: ’11 – Q5 (A) agreed to serve as a lookout after his companions decided to murder the victim. (B) watched quietly as the murderer stabbed his victim. (C) helped the murderer find the victim who was hiding to avoid detection. (D) provided no help, when he can, to save the victim from dying.

A and B, both store janitors, planned to kill their employer C at midnight and take the money kept in the cash register. A and B together drew the sketch of the store, where they knew C would be sleeping, and planned the sequence of their attack. Shortly before midnight, A and B were ready to carry out the plan. When A was about to lift C's mosquito net to thrust his dagger, a police car with sirens blaring passed by. Scared, B ran out of the store and fled, while A went on to stab C to death, put the money in the bag, and ran outside to look for B. The latter was nowhere in sight. Unknown to him, B had already left the place. What was the participation and corresponding criminal liability of each, if any? '03 – Q3

Zeno and Primo asked Bert to give them a sketch of the location of Andy’s house since they wanted to kill him. Bert agreed and drew them the sketch. Zeno and Primo drove to the place and killed Andy. What crime did Bert commit? ’11 – Q8 (A) Accomplice to murder, since his cooperation was minimal. (B) Accessory to murder, since his map facilitated the escape of the two. (C) None, since he took no step to take part in executing the crime. (D) Principal to murder, since he acted in conspiracy with Zeno and Primo.

There was an expressed conspiracy between A and B to kill C and take the latter's money. The planned killing and taking of the money appears to be intimately related as component crimes, hence a special complex crime of robbery with homicide. The conspiracy being expressed, not just implied, A and B are bound as co-conspirators after they have planned and agreed on the sequence of their attack even before they committed the crime. Therefore, the principle in law that when there is a conspiracy, the act of one is the act of all, already governs them. In fact, A and B were already in the store to carry out their criminal plan. That B ran out of the store and fled upon hearing the sirens of the police car, is not spontaneous desistance but flight to evade apprehension. It would be different if B then tried to stop A from continuing with the commission of the crime; he did not. So the act of A in pursuing the commission of the crime which both he and B designed, planned, and commenced to commit, would also be the act of B because of their expressed conspiracy. Both are liable for the composite crime of robbery with homicide.

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: “O, pagkabaril mo kay Freddie, isauli mo kaagad, ha.” Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot. ’09 – Q5 1. What, if any, is the liability of Ruben? ’09 – Q5-1 Ruben’s liability is that of an accomplice only because he merely cooperated in Ponciano’s determination to kill Freddie. Such cooperation is not indispensable to the killing, as in fact the killing was carried out without the use of Ruben’s gun. Neither may Ruben be regarded as a co-conspirator since he was not a participant in the decision-making of Ponciano to kill Freddie; he merely cooperated in carrying out the criminal plan which was already in place (Article 18, RPC.)

State the concept of “implied conspiracy” and give its legal effects. '03 – Q4a

2.

An "IMPLIED CONSPIRACY" is one which is only inferred or deduced from the manner the participants in the commission of crime carried out its execution. Where the offenders acted in concert in the commission of the crime, meaning that their acts are coordinated or synchronized in a way indicative that they are pursuing a common criminal objective, they shall be deemed to be acting in conspiracy and their criminal liability shall be collective, not individual. The legal effects of an "implied conspiracy" are: 1. Not all those who are present at the scene of the crime will be considered conspirators; 2. Only those who participated by criminal acts in the commission of the crime will be considered as co-conspirators; and 3. Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator.

Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? ’09 – Q5-2

NO. The answer would not be the same because Ruben lent his gun purposely for the killing of Freddie only, not for any other killing. Ponciano’s using of Ruben’s gun in killing a person other than Freddie is beyond Ruben’s criminal intent and willing involvement. Only Ponciano will answer for the crime against Manuel. It has been ruled that when the owner of the gun knew that it would be used to kill a particular person, but the offender used it to kill another person, the owner of the gun is not an accomplice as to the killing of the other person. While there was community of design to kill Freddie between Ponciano and Ruben, there was none with respect to the killing of Manuel. Manolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to Domeng his desire to borrow his revolver, Domeng lent it. Manolo shot Cece in Manila with Domeng’s revolver. As his gun was used in the killing, Domeng asked Mayor Tan to help him escape. The mayor gave Domeng P5,000 and told him to proceed to Mindanao to hide. Domeng went to Mindanao. The mayor was later charged as an accessory to Cece’s murder. ’08 – Q4 1. Can he be held liable for the charge? ’08 – Q4-1

X, Y, and Z fired their guns almost simultaneously at the principal victim, resulting in his death and his driver. Is there conspiracy among the accused in the commission of the crime? ’76 – Q1b There is conspiracy among the accused X, Y and Z. The fact that the three fired almost simultaneously at the principal victim shows that they have acted in concert pursuant to a common criminal objective. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is, therefore, a unity of action and intention (People v. San Luis, 85 Phil. 485 [1950].) To establish conspiracy, proof of previous agreement is not necessary. It is enough that if at the time of the commission of the crime, all the accused have the same purpose and were united in the execution (People v. Binasing, 63 O.G. 5208).

If Domeng is not a principal to the crime of murder, the Mayor may not be held liable as an accessory since he merely assisted in the escape of an accomplice. Par. 3, Article 19, RPC speaks of harboring or assisting in the escape of a principal. The mayor, however, can he held liable as principal in the crime of maliciously refraining from instituting or prosecuting an offender under Article 208 of the RPC.

Accomplice Who is an accomplice? (5%) ’12 – QVa

Another Alternative Answer:

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers If Domeng is a principal by indispensable cooperation, the mayor can be held liable as an accessory to the murder under Article 19(3), RPC. 2.

Moreover, the facts as given in the problem would show lack or absent of intent to conceal the effects of the crime as Abelardo is described as being “unsure of what to do under the circumstances”. Even if he can be considered as an accessory under par. 2 of Art. 19, RPC, Abelardo is not liable, being the brother of Modesto under Art. 20, RPC.

Can he be held liable for any other offense? ’08 – Q4-2

YES, for violation of (1) Section 1(c) of P.D. No. 1829 for harboring or assisting in the escape of a person who as committed a crime or whom he knows has committed a crime; and (2) under Article 19(3), RPC, the mayor, being a public officer and acting with abuse of his public functions, is an accessory to the crime of murder by assisting in the escape of Domeng.

Immediately after murdering Bob, Jake went to this mother to seek refuge. His mother told him to hide in the maid’s quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunt’s house. A week later, Jake was apprehended by the police. Can Jake’s mother and aunt be made criminally liable as accessories to the crime of murder? ’10 – Q22

Distinguish between an accomplice and a conspirator. ’07 – Q5a; ’12 – Q5b

Obviously, Jake’s mother was aware of her son having committed a felony, such act of harboring and concealing him renders her liable as an accessory. But being an ascendant of Jake, she is exempt from criminal liability by express provision of Article 20 of the Revised Penal Code. On the other hand, the criminal liability of Jake’s aunt depends on her knowledge of the felony committed by Jake. If she had knowledge of his commission of the felony, her act of harboring and concealing Jake would render her criminally liable as accessory to the crime of murder; otherwise without knowledge of Jake’s commission of the felony, she would not be liable.

The distinction between an accomplice and a conspirator are: 1. An accomplice incurs criminal liability by merely cooperating in the execution of the crime without participating as a principal, by prior or simultaneous acts; whereas, a conspirator participates in the commission of a crime as a co-principal; 2. An accomplice incurs criminal liability in an individual capacity by his act alone of cooperating in the execution of the crime; while a conspirator incurs criminal liability not only for his individual acts in the execution of the crime but also for the acts of other participants in the commission of the crime collectively. The acts of the other participants in the execution of the crime are considered also as acts of a conspirator for purposes of collective criminal responsibility; 3. An accomplice participates in the execution of the crime when the design or plan is already in place; whereas a conspirator participates in the adoption or making of the criminal design; 4. An accomplice is subject to a penalty one degree lower than that of a principal; whereas, a conspirator incurs the penalty of a principal.

DCB, the daughter of MCB, stole the earrings of XYZ, a stranger. MCB pawned the earrings with TBI Pawnshop as a pledge for P500 loan. During the trial, MCB raised the defense that being the mother of DCB, she cannot be held liable as an accessory. Will MCB's defense prosper? '04 – Q8b NO, MCB's defense will not prosper because the exemption from criminal liability of an accessory by virtue of relationship with the principal does not cover accessories who themselves profited from or assisted the offender to profit by the effects or proceeds of the crime. This non-exemption of an accessory, though related to the principal of the crime, is expressly provided in Article 20 of the RPC.

Accessory A was bitten by a dog owned by a neighbor. The following day, angered by the incident, Atook the dog without the knowledge of the owner, had it butchered and cooked the meat. Hethen invited his friends to partake of the dish with his friends who knew fully well that the dog was taken without the knowledge of the owner. What are the friends of A liable for? ‘14-Q26 (A) Theft (B) Malicious mischief (C) Accessories (D) Obstruction of Justice NOTE: The correct answer is that the friends are not liable for any crime, which is not in the choices in the given problem. The profiting that will make them liable as accessiories should be material profiting, and enjoying the food is not.

King went to the house of Laura who was alone. Laura offered him a drink and after consuming 3 bottles of beer. King made advances to her and with force and violence, ravished her. Then King killed Laura and took her jewelry. Doming, King's adopted brother, learned about the incident. He went to Laura's house, hid her body, cleaned everything and washed the bloodstains inside the room. Later, King gave Jose, his legitimate brother, one piece of jewelry belonging to Laura. Jose knew that the jewelry was taken from Laura but nonetheless he sold it for P2,000. What crime or crimes did King, Doming and Jose commit? Discuss their criminal liabilities. '98 – Q7

Modesto and Abelardo are brothers. Sometime in August, 1998 while Abelardo was in his office, Modesto, together with two other men in police uniform, came with two heavy bags. Modesto asked Abelardo to keep the two bags in his vault until he comes back to get them. When Abelardo later examined the two bags, he saw bundles of money that, in his rough count, could not be less than P5 Million. He kept the money inside the vault and soon he heard the news that a gang that included Modesto had been engaged in bank robberies. Abelardo, unsure of what to do under the circumstances, kept quiet about the two bags in his vault. Soon after, the police captured, and secured a confession from, Modesto who admitted that their loot had been deposited with Abelardo.

King committed the composite crime of Rape with homicide as a single indivisible offense, not a complex crime, and Theft. The taking of Laura's jewelry when she is already dead is only theft. Doming's acts, having been done with knowledge of the commission of the crime and obviously to conceal the body of the crime to prevent its discovery, makes him an accessory to the crime of rape with homicide under Article 19, par. 2 of the RPC, but he is exempt from criminal liability therefor under Article 20 of the Code, being an adopted brother of the principal. Jose incurs criminal liability either as an accessory to the crime of theft committed by King, or as fence. Although he is a legitimate brother of King, the exemption under Article 20 does not include the participation he did, because he profited from the effects of such theft by selling the jewelry knowing that the same was taken from Laura. Or Jose may be prosecuted for fencing under the Anti-Fencing Law of 1979 (PD No. 1612) since the jewelry was the proceeds of theft and with intent to gain, he received it from King and sold it.

What is Abelardo's liability? (7%) ’13 – Q3 SUGGESTED ANSWER: Abelardo is not criminally liable. To be criminally liable as an accessory under Art, 19 of the Revised Penal Code (RPC), such person must have knowledge of the commission of the crime. The term “knowledge” under the law is not synonymous with suspicion. Mere suspicion that a crime has been committed is not sufficient.

A proposed to B that they rob a certain store, to which B agreed. Later, however, B undertook the robbery alone and made off with P2,000. The following day, after making some shallow explana-

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers tion, B apologized to A and gave the latter P500, which A somewhat grudgingly accepted. What is A’s liability, if any? ’83 – Q4

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%) SUGGESTED ANSWER (a) Under the second part of the Indeterminate Sentence Law, in cases where the offense is punishable under special law, the maxim urn indeterminate penalty shall not exceed the maximum limit of the prescribed penalty while the minimum penalty shall not be less than the minimum limit thereof. However, if the special law adopts the technical nomenclature of the penalties under the Revised Penal Code (Pevple v. Macatanda, G.R. No. 51368, November 6, 1981), the provision of the Revised Penal Code will apply. Consequently, there will be an application of Art. 64 of the Revised Penal Code. The maximum penalty shall be fixed within the range of the proper imposablc. period after taking into consideration the modifying circumstance; while the minimum penalty shall be fixed within the range of the penalty next lower in degree than that prescribed by law (People v. Simon, G.R. No. 93028, July 29, 1994; Jacaba11 v. People, G.R. No. 184355, March 23, 2015; Mallo v. People, G.R. No. 164733, September 21, 2007; People v. Montalaba, G.R. No. 186227, July 20, 201J; People v. Musa, G.R. No. 199735, October 24, 2012; Peopl v. Salazar, G.R. No. 98060, January 27, 1997). (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%) SUGGESTED ANSWER

A is liable as an accessory. Although A proposed that robbery be committed in a certain store, such proposal is not punished by law. So if B, to whom the proposal was made, committed the robbery along, only he will be liable for the robbery. But since A received from B P500 which he knew to be part of the amount of P2000, which was robbed, A is liable as an accessory because he profited from the proceeds of the commission of the crime. Alternative Answer: A is liable for the offense of fencing. The reason is A, with intent to gain for himself, received, possessed and kept an article or object of value which he knew to have been derived from the proceeds of the crime of robbery (P.D. No. 1612). Money is an article of value. Corpus Delicti At a birthday party in Bogo, Cebu, A got intoxicated and started quarrelling with B and C. At the height of their arguments, A left and took a bolo from his house, after which he returned to the party and threatened to stab everybody. B got scared and ran towards the seashore, with A chasing him, B ran up a steep incline along the shore and was cornered on top of a cliff. Out of fear, B jumped from the cliff into the sea, A returned to the scene of their confrontation and seeing that nobody was there, went home to sleep. The next day, B's wife reported to the police station that her husband had not yet come home. A search was conducted by the residents of the barangay but after almost 2 days, B or his body could not be located and his disappearance continued for the next few days. Based on the testimony of C and other guests, who had seen A and B on top of the cliff, A was arrested and charged with Murder. In his defense, he claimed that since B's body has not been found, there was no evidence of “corpus delicti” and therefore, he should be acquitted. Is the defense of A tenable or not? '01 – Q11

(b) Since Sammy Peke made a confession, the penalty of prision correctional prescribed for selling fake book shall be applied in its minimum period, which ranges from 6 months and 1 day to 2 years and 4 months. Thus, the court may opt to impose a penalty of I year of imprisonment witbin the range of the minimum period of prision correcional In this case, Indeterminate Sentence Law is applicable, therefore, the straight penalty of one year of imprisonment is correct.

The defense of A is not tenable. “Corpus delicti” does not refer to the body of the purported victim which had not been found. Even without the body of the purported victim being found, the offender can be convicted when the facts and circumstances of a crime, the body of the crime or “corpus delicti” is established. In other words, the non-recovery of the body of the victim is not a bar to the prosecution of A for Murder, but the fact of death and identity of the victim must be established beyond reasonable doubt.

Explain the application of the Indeterminate Sentence Law (ISL). (5%) ’16 – Q1 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 Revised Penal Code, and the minimum of 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 (special 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. (Section l, ISL, Act No. 4103 as amended by Act No. 4225) The court must, instead of a single fixed penalty, except where the imposable penalty is one (1) year or less, determine two penalties, referred to in the Indeterminate Sentence Law as the “maximum” and “minimum” terms.

Define “corpus delicti”. What are the elements of “corpus delicti”? '00 – Q18a & 18b Corpus Delicti literally means “the body or substance of the crime” or the fact that a crime has been committed, but does not include the identity of the person who committed it (People v. Pascual, 44 OG 2789). Elements of corpus delicti: The actual commission by someone of the particular crime charged. It is a compound fact made up of two things: 1. The existence of a certain act or result forming the basis of the criminal charge; and 2. The existence of a criminal agency as the cause of the act or result The identity of the offender is not a necessary element of corpus delicti.

Under Article 27 of the RPC, as amended by R.A. No. 7659, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does this mean that reclusion perpetua is now a divisible penalty? ’05 – Q1(2) NO, reclusion perpetua is still an indivisible penalty although it has been given a fixed duration by R.A. No. 7659 (An Act to Impose the Death Penalty on certain Heinous Crimes.) In an en banc ruling of the Supreme Court in People v. Lucas, 240 SCRA 66 [1995], it was held the reclusion perpetua has remained an indivisible penalty as there is no clear legislative intention to make the penalty divisible.

Principles, Classification, Duration and Effects of Penalties 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.’17 – Q10

Distinguish pecuniary penalties and pecuniary liabilities. ’05 – Q1(3) Pecuniary penalties are those which a convicted offender may be required to pay in money to the Government. These are:

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 1. Fine; and 2. Cost of the proceedings. Pecuniary liabilities, on the other hand, are those which a convicted offender is required to pay in money to the offended party and to the Government. They are: 1. Reparation of the damage caused; 2. Indemnification of consequential damages; 3. Fine; and 4. Cost of the proceedings (Article 38, RPC.) The first two liabilities (nos. 1 and 2) are payable as civil indemnity to the private parties offended by the crime; while the last two (nos. 3 and 4) are payable to the Government.

given in the Ospital ng Manila. Because the weapon used by Benjamin was unlicensed and the qualifying circumstance of treachery was found to be present. Judge Laya rendered his decision convicting Benjamin and sentencing him to "reclusion perpetua or life imprisonment". Are "reclusion perpetua" and life imprisonment the same and can be imposed interchangeably as in the foregoing sentence? Or are they totally different? '01 – Q7a The penalty of reclusion perpetua and the penalty of life imprisonment are totally different from each other and therefore, should not be used interchangeably. Reclusion perpetua is a penalty prescribed by the RPC, with a fixed duration of imprisonment from 20 years and 1 day to 40 years, and carries it with accessory penalties. Life imprisonment, on the other hand, is a penalty prescribed by special laws, with no fixed duration of imprisonment and without any accessory penalty.

E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency. '05 – Q3 1. Is the penalty proper? '05 – Q3(1)

When is there preventive imprisonment? '94 – Q3(1)

Imposing the penalty of fine jointly and severally on the two convicted accused is not proper. The penalty should be imposed individually on every person accused of the crime. Any of the convicted accuse who is insolvent and unable to pay the fine, shall serve the subsidiary imprisonment. 2.

There is preventive imprisonment when an offender is detained while the criminal case against him is being heard, either because the crime committed is a capital offense and not bailable, or even if the crime committed was bailable, the offender could not post the required bail for his provisional liberty.

May the judge impose an alternative penalty of fine or imprisonment? '05 – Q3(2)

When is the accused credited with the full time of his preventive imprisonment, and when is he credited with 4/5 thereof? '94 – Q3(2)

The judge may not validly impose an alternative penalty. Although the law may prescribe an alternative penalty for a crime, it does not mean that the court may impose the alternative penalties at the same time. The sentence must be definite, otherwise the judgment cannot attain finality.

An accused is credited with the full time of his preventive imprisonment if he voluntarily agreed in writing to abide by the rules of the institution imposed upon its prisoners, provided that: 1. The penalty imposed on him for the crime committed consists of a deprivation of liberty; 2. He is not disqualified from such credit for being a recidivist, or for having been previously convicted for two or more times of any crime, or for having failed to surrender voluntarily for the execution of the sentence upon being so summoned (Article 29, RPC). Where the accused however did not agree he would only be credited with 4/5 of the time he had undergone preventive imprisonment.

The death penalty cannot be inflicted under which of the following circumstances: 1. When the guilty person is at least 18 years of age at the time of the commission of the crime. 2. When the guilty person is more than 70 years of age. 3. When, upon appeal to or automatic review by the Supreme Court, the required majority for the imposition of the death penalty is not obtained. 4. When the person is convicted of a capital crime but before execution becomes insane. 5. When the accused is a woman while she is pregnant or within one year after delivery. Explain your answer or choice briefly. ’04 – Q5a

Imagine that you are a Judge trying a case, and based on the evidence presented and the applicable law, you have decided on the guilt of two (2) accused. Indicate the five (5) steps you would follow to determine the exact penalty to be imposed. Stated differently, what are the factors you must consider to arrive at the correct penalty? '91 – Q11

Understanding the word "inflicted" to mean the imposition of the death penalty, not its execution, the circumstance in which the death penalty cannot be inflicted is no. 2: "when the guilty person is more than 70 years of age" (Article 47, RPC). Instead, the penalty shall be commuted to reclusion perpetua, with the accessory penalties provided in Article 40, RPC. In circumstance no. 1 when the guilty person is at least 18 years of age at the time of the commission of the crime, the death penalty can be imposed since the offender is already of legal age when he committed the crime. Circumstance no. 3 no longer operates, considering the decision of the Supreme Court in People v. Mateo (G.R. 147678-87, July 7, 2004) providing an intermediate review for such cases where the penalty imposed is death, reclusion perpetua or life imprisonment before they are elevated to the Supreme Court. In circumstances nos. 4 & 5, the death penalty can be imposed if prescribed by the law violated although its execution shall be suspended when the convict becomes insane before it could be executed and while he is insane. Likewise, the death penalty can be imposed upon a woman but its execution shall be suspended during her pregnancy and for one year after her delivery.

1. 2. 3. 4. 5.

Determine the crime committed; Stage of execution and degree of participation; Determine the penalty; Consider the modifying circumstances; Determine whether Indeterminate Sentence Law is applicable or not.

Application of Penalties In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Section 249 of the RPC is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. ’09 – Q12 1. Applying the ISL, determine the appropriate penalty to be imposed. ’09 – Q12(1) Under the Indeterminate Sentence Law, the minimum of the sentence shall be anywhere within the range of 6 years and 1 day to 12 years imprisonment while the maximum of the sentence shall be anywhere within the range of reclusion temporal minimum, i.e., not lower than 12 years and 1 day to not more than 14 years and 8 months.

After trial, Judge Juan Laya of the Manila RTC found Benjamin Garcia guilty of Murder, the victim having sustained several bullet wounds in his body so that he died despite medical assistance

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 2.

Will your answer be the same if it is a conviction for illegal possession of firearms under R.A. No. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? ’09 – Q12(2)

Roman was charged with, and was convicted of, five (5) counts of rape, but the judge did not impose the penalty of reclusion perpetua for each count. Instead, the judge sentenced Roman to 40 years of imprisonment on the basis of the three-fold rule.

NO. My answer will not the same because violations of R.A. No. 9165 are mala prohibita in which mitigating and aggravating circumstances are not appreciated. Although in People v. Simon, 234 SCRA 555 [1994], it was held that Article 64 can be applied if the special law adopted that nomenclature of penalties under the RPC, such pronouncement cannot be applied in the instant case because the penalties for illegal possession of drugs under R.A. No. 9165 do not follow that technical nomenclature of penalties in the RPC and thus, cannot be divided into periods. Hence, the existence of mitigating and aggravating circumstances cannot be appreciated.

SUGGESTED ANSWER: No. The three-fold rule is applicable only in connection with the service of the sentence, not in the imposition of the proper penalties. The court must impose all penalties for all the crimes for which the accused have been found guilty. Thus, the court should not make a computation in its decision and sentence the accused to not more than the three-fold of the most severe of the penalties imposable. The computation under the three-fold rule is for the prison authorities to make (Art. 70, Revised Penal Code).

Was the judge correct? (7%) ’13-Q9

At a wake, there were people watching a game of dice. With treachery and use of unlicensed firearms, AA fired successively several gunshots at their direction. During the shooting, four (4) persons were killed and fourteen (14) others were injured and brought to the hospital for the treatment of gunshot wounds. What should be the proper charge against AA? ’12 - 62 a) AA should be charged with multiple murder and attempted murder. b) AA should be charged with four (4) counts of murder and fourteen (14) counts of attempted murder. c) AA should be charged with four (4) counts of murder, fourteen (14) counts of serious physical injuries and illegal possession of firearms. d) AA should be charged with complex crime of murder and attempted murder with illegal possession of firearms. SUGGESTED ANSWER: b) AA should be charged with four (4) counts of murder and fourteen (14) counts of attempted murder. Article 48 refers to cases where “a single act constitutes two or more grave felonies”. A complex (compound) crime refers to singularity of criminal acts (People vs. Pineda, GR No. L-26222, July 21, 1967). When one fires his firearm in succession, killing and wounding several persons, the different acts must be considered as distinct crimes (People vs. Remollino, GR No. L-14008, September 30, 1960). When various victims expire from separate shots, such acts constitute separate and distinct crimes (People vs. Tabaco, G.R. Nos. 100382-100385 March 19, 1997).

Complex Crimes and Compound Crimes Bruno was charged with homicide for killing the 75-year old owner of his rooming house. The prosecution proved that Bruno stabbed the owner causing his death; and that the killing happened at 10 in the evening in the house where the victim and Bruno lived. Bruno, on the other hand, successfully proved that he voluntarily surrendered to the authorities; that he pleaded guilty to the crime charged; that it was the victim who first attacked and did so without any provocation on his (Bruno's) part, but he prevailed because he managed to draw his knife with which he stabbed the victim. The penalty for homicide is reclusion temporal. Assuming a judgment of conviction and after considering the attendant circumstances, what penalty should the judge impose? (7%) ’13-Q1 SUGGESTED ANSWER: Bruno should be sentenced to indeterminate penalty of arresto mayor in any of its period as minimum to prision correccional in its medium period as maximum. Bruno was entitled to two privileged mitigating circumstances of incomplete self-defense and the presence of at least two ordinary mitigating circumstances without any aggravating circumstance under Articles 69 and 64(5) of the Revised Penal Code, respectively, which lower the prescribed penalty for homicide which is reclusion temporal to prision correccional.

AB was driving a van along a highway. Because of her recklessness, the van hit a car which had already entered the intersection. As a result, CD who was driving the car suffered physical injuries, while damage to his car amounted to P8,500.00. What is the proper charge against AB? ’12 - Q49 a) AB should be charged with complex crime of reckless imprudence resulting in damage to property with slight physical injuries. b) AB should .be charged with reckless imprudence resulting in slight physical injuries and reckless imprudence resulting in damage to property. c) AB should be charged with complex crime of slight physical injuries with damage to property. d) AB should be charged with slight physical injuries and reckless imprudence resulting in damage to property. SUGGESTED ANSWER: b) AB should be charged with reckless imprudence resulting in slight physical injuries and reckless imprudence resulting in damage to property. Under Article 48 of the Revised Penal Code, there is a compound crime when a single act constitutes two or more grave or less grave felonies. In People vs. Turla, 50 Phil. 1001, in a collision between two automobiles driven in a careless and negligent manner, resulting in the physical injuries and damage to property, there is no complex crime since slight physical injuries is a light felony. Hence, AB should be charged separately with reckless imprudence resulting in damage to property and reckless imprudence resulting in slight physical injuries. [NOTE: The principle in Turla case contradicts the latest ruling of the Supreme Court in Ivler vs. Modesto-San Pedro, G.R. No. 172716, November 17, 2010, where it was ruled that “Reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes; hence conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense,

There is incomplete self-defense because Bruno proved that it was the victim who first attacked him and did so without provocation on his part. There is, however, no reasonable necessity of the means employed to defend himself, after Bruno used a knife to stab the weaponless victim. There are also no aggravating circumstances present, because it was not shown that Bruno disregarded the age of the victim or that nighttime facilitated the commission of the crime; moreover, dwelling cannot be appreciated because the crime happened in the house where both Bruno and the victim lived. In contrast, there are two mitigating circumstance present, namely, voluntary surrender and plea of guilty. Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty should be within the range of prision correccional in its medium period and the minimum term should be within the range of the penalty next lower in degree or arresto mayor in any of its period. Roman and Wendy are neighbors. On Valentine's Day, without prior notice, Roman visited Wendy at her condo to invite her to dinner, but Wendy turned him down and abruptly left, leaving her condo door unlocked. Roman attempted to follow, but appeared to have second thoughts; he simply went back to Wendy's condo, let himself in, and waited for her return. On Wendy's arrival later that evening, Roman grabbed her from behind and, with a knife in hand, forced her to undress. Wendy had no choice but to comply. Roman then tied Wendy's hands to her bed and sexually assaulted her five (5) times that night.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers regardless of its various consequences. The essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally dne, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty. It does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense criminal negligence remains one and the same, and cannot be split into different crimes and prosecutions.”

In ORDINARY COMPLEX CRIME, the penalty for the most serious crime shall be imposed and in its maximum period. In SPECIAL COMPLEX CRIME, only one penalty is specifically prescribed for all the component crimes which are regarded as one indivisible offense. The component crimes are not regarded as distinct crimes and so the penalty for the most serious crime is not the penalty to be imposed nor in its maximum period. It is the penalty specifically provided for the special complex crime that shall be applied according to the rules on imposition of the penalty. A, actuated by malice and with the use of a fully automatic M-14 sub-machine gun, shot a group of persons who were seated in a cockpit with one burst of successive, continuous, automatic fire. Four (4) persons were killed thereby, each having hit by different bullets coming from the sub-machine gun of A. Four (4) cases of murder were filed against A. The trial court ruled that there was only one crime committed by A for the reason that, since A performed only one act, he having pressed the trigger of his gun only once, the crime committed was murder. Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua. Was the decision of the trial judge correct? '99 – Q15a

A special complex crime is a composite crime: ’11 – Q72 (A) made up of 2 or more crimes defined in the Penal Code. (B) with its own definition and special penalty provided by the Penal Code. (C) with its own definition and special penalty provided by a special penal law. (D) made up of 2 or more crimes defined in the Penal Code and special penal laws. Distinguish the following from each other: 1. Complex crime under Article 48 of the RPC; ’05 – Q1(1)

The decision of the trial judge is not correct. When the offender made use of an automatic firearm, the acts committed are determined by the number of bullets discharged inasmuch as the firearm being automatic, the offender need only press the trigger once and it would fire continually. For each death caused by a distinct and separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them.

In a complex crime, the component crimes are defined and penalized under separate and distinct Articles of the RPC but are allowed to be alleged to be alleged in one Information as an exception to Section 13, Rule 110 of the Rules of Criminal Procedure, because they are committed under the circumstances provided in Article 48 of the RPC, i.e., two or more grave or less grave felonies from a single act, or one offense was a necessary means for committing the same offence. 2.

Special complex crime; and ’05 – Q1(2) What constitutes a complex crime? How many crimes maybe involved in a complex crime? What is the penalty therefor? '99 – Q15b

In a special complex crime, also known as composite crime, the component crime constitute a single indivisible offense and are thus penalized as one crime under one Article of the Revised Penal Code, such as robbery with homicide under Article 294 of the RPC. 3.

A complex crime is constituted when a single act caused two or more grave or less grave felonies or when an offense is committed as a necessary means to commit another offense (Art. 48, RPC.) At least two (2) crimes are involved in a complex crime; either two or more grave or less grave felonies resulted from a single act, or an offense is committed as a necessary means for committing another. The penalty for the more serious crime shall be imposed and in its maximum period. (Art. 48, RPC.)

Delito continuado. ’05 – Q1(3)

Delito continuado, also known as continued crime, is constituted by a series of overt acts committed by the offender in one place, and therefore regarded as impelled by a single, indivisible criminal resolution; hence, punished as one crime only. Distinguish clearly but briefly: Between compound and complex crimes as concepts in the RPC. '04 – Q10(2)

Continuing Crime

COMPOUND CRIMES result when the offender committed only a single felonious act from which two or more crimes resulted. This is provided for in modified form in the first part of Article 48, RPC, limiting the resulting crimes to only grave and/or less grave felonies. Hence, light felonies are excluded even though resulting from the same single act. COMPLEX CRIMES result when the offender has to commit an offense as a necessary means for committing another offense. Only one Information shall be filed and if proven, the penalty for the more serious crime shall be imposed.

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25% computed monthly, and guaranteed by post-dated checks. During the 1st two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of B.P. Blg. 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of B.P. Blg. 22. ’09 – Q13 1. What is delito continuado? ’09 – Q13(1)

Distinguish between an ordinary complex crime and a special complex crime as to their concepts and as to the imposition of penalties. ’03 – Q10a

Delito continuado refers to a crime constituted by several overt acts committed by the offender in one place, at about the same time, and all such overt acts violate one and the same provision of a penal law, thus demonstrating that all such acts are the product of a single indivisible criminal resolution. Hence, all said acts are considered as one crime only.

IN CONCEPT – An ORDINARY COMPLEX CRIME is made up of two or more crimes being punished in distinct provisions of the Revised Penal Code but alleged in one Information either because they were brought about by a single felonious act or because one offense is a necessary means for committing the other offense or offenses. They are alleged in one Information so that only one penalty shall be imposed. A SPECIAL COMPLEX CRIME, on the other hand, is made up of two or more crimes which are considered only as components of a single indivisible offense being punished in one provision of the Revised Penal Code. AS TO PENALTIES –

2.

Is Angelo’s contention tenable? ’09 – Q13(2)

NO. Angelo’s contention is not tenable. He committed as many counts of estafa against the 500 victims and 2000 counts of violation of B.P. 22, since each swindling is achieved through distinct fraudulent machinations contrived at different times or dates, and in different amounts. Moreover, his drawing separate checks payable to each

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers payee is a separate criminal resolution, as they are of different amounts and of different dates. He acted with separate fraudulent intent against each swindling victim and had distinct criminal intent in drawing and issuing each check. It cannot be maintained that his acts are the product of one criminal resolution only.

Effects of Death of the Offender The Regional Trial Court {RTC) found Tiburcio guilty of frustrated homicide and sentenced him to an indeterminate penalty of four years and one day of prision correccional as minimum, to eight years ofprision mayor as maximum, and ordered him to pay actual damages in the amount of 1125,000.00. Tiburcio appealed to the Court of Appeals which sustained his conviction as well as the penalty imposed by the court a quo. After sixty days, the Court of Appeals issued an Entry of Judgment and remanded the records of the case to the RTC. Three days thereafter, Tiburcio died of heart attack. Atty. Abdul, Tiburcio's counsel, filed before the RTC a Manifestation with Motion to Dismiss, informing the court that Tiburcio died already, and claiming that his criminal liability had been extinguished by his demise. ’15 – Q3

Execution and Service of Penalties The penalty of perpetual or temporary special disqualification for the exercise of the right of suffrage does NOT deprive the offender of the right: ’11 – Q48 (A) to be elected to a public office. (B) to vote in any popular election for a public office. (C) to vote in a plebiscite. (D) to hold any public office. What are the penalties that may be served simultaneously? ’07 – Q1

a) Should the RTC grant the Motion to Dismiss the case? Explain. (2.5%) ’15 – Q3a

The penalties that may be served simultaneously are imprisonment/destierro and: 1. Perpetual absolute disqualification; 2. Perpetual special disqualification; 3. Temporary absolute disqualification; 4. Temporary special disqualification; 5. Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling; 6. Fine; 7. And any principal penalty with its accessory penalties.

Answer: (a) The RTC may not grant the motion to dismiss because the Court of Appeals, having issued an Entry of Judgement, the decision has become final and executory. However, the pecuniary penalty, such as the civil liability arising from the crime consisting of actual damages of P25 000 survives the death of Tiburcio. b) Assuming that Tiburcio' s death occurred before the Court of Appeals rendered its decision, will you give a different answer? Explain. (2.5%) ’15-Q3b (b) Yes. The RTC decision must be set aside and the case against TIburcio must consequently be dismissed. The demise of Tiburcio which occurred before the Court of Appeals rendered it decision causes his criminal liability, as well as his civil liability ex delicto, to be totally extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action is instituted therein for recovery of civil liability, ex delicto is ipso facto extinguished, grounded as it is on criminal case.

There at least 7 instances or situations in criminal cases wherein the accused, either as an adult or minor, can apply for and/or granted a suspended sentence. Enumerate at least 5 of them. ’06 – Q5 Instances when sentence may be suspended are: 1. Where the accused became insane before sentence could be promulgated (Article 79, RPC); 2. Where the offender, upon conviction by the trial court, filed an application for probation which has been granted (Baclayon v. Mutia, 129 SCRA 148 [1984]; 3. Where the offender needs to be confined in a rehabilitation center because of drug-dependency although convicted of the crime charged; 4. Where the offender is a youthful offender under Article 192, P.D. No. 603, otherwise referred to as the Child and Youth Welfare Code; 5. Where the crime was committed when the offender is under 18 years of age and is found guilty thereof in accordance with R.A. No. 9344, otherwise known as the “Juvenile Justice and Welfare Act of 2006”, but trial court subjects him to appropriate disposition measures as prescribed by the Supreme Court in the Rule on Juveniles in Conflict with the Law. 6. Section 66 of R.A. No. 9165 (Comprehensive Dangerous Drugs Act of 2002)1 ; and 7. When the sentence is death, its execution may be suspended or postponed by the Supreme Court, through the issuance of a Restraining Order upon the ground of supervening events (Echegaray v. Secretary of Justice, 301 SCRA 96 [1999].)

AX was convicted of reckless imprudence resulting in homicide. The trial court sentenced him to a prison term as well as to pay P150,000 as civil indemnity and damages. While his appeal was pending, AX met a fatal accident. He left a young widow, 2 children, and a million-peso estate. What is the effect, if any, of his death on his criminal as well as civil liability? '04 – Q7a The death of AX while his appeal from the judgment of the trial court is pending, extinguishes his criminal liability. The civil liability insofar as it arises from the crime and recoverable under the Revised Penal Code is also extinguished; but indemnity and damages may be recovered in a civil action if predicated on a source of obligation under Article 1157, Civil Code, such as law, contracts, quasi-contracts and quasi-delicts, but not on the basis of delicts (People v. Bayotas, 236 SCRA 239 [1994].) Civil indemnity and damages under the Revised Penal Code are recoverable only if the accused had been convicted with finality before he died. For defrauding Lorna, Alma was charged before the MTC of Malolos, Bulacan. After a protracted trial, Alma was convicted. While the case was pending appeal in the RTC of the same province, Lorna who was then suffering from breast cancer, died. Alma manifested to the court that with Lorna's death, her (Alma's) crim-

Extinction of Criminal Liabilities

Section 66. Suspension of a First-Time Minor Offender. – An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgement should have been promulgated after having found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: a. He/she has not been previously convicted of violating any provision of this Act, or the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code, or of any special penal laws; b. He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and c. The Board favorably recommends that his/her sentence be suspended. x x x 1

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers inal and civil liabilities are now extinguished. Is Alma's contention correct? What if it were Alma who died, would it affect her criminal and civil liabilities? '00 – Q5a

sion perpetua, and what he received was amnesty from the government, will your answer be the same? Explain. (2.5%) ’15Q6b

NO. Alma's contention is not correct. The death of the offended party does not extinguish the criminal liability of the offender, because the offense is committed against the State (People v. Misola, 87 Phil. 830, 833 [1950].) Hence, it follows that the civil liability of Alma based on the offense committed by her is not extinguished. The estate of Lorna can continue the case. On the other hand, if it were Alma who died pending appeal of her conviction, her criminal liability shall be extinguished and therewith the civil liability under the Revised Penal Code (Article 89, par. 1, RPC). However, the claim for civil indemnity may be instituted under the Civil Code (Art. 1157) if predicated on a source of obligation other than delict, such as law, contracts, quasi-contracts and quasi-delicts (People v. Bayotas, 236 SCRA 239 [1994].)

. (b) If Senator Adamos was convicted of rebellion and he received amnesty, I will give him the advice that he can run in the Senatorial race. Under Article 89 of the Revised Penal Code, criminal liability is totally extinguished by amnesty, which completely extinguishes the penalty and all its effects. Thus, the amnesty extinguishes not only principal penalty of reclusion perpetua but also its effects such as the accessory penalty of perpetual absolute disqualification. Amnesty looks backward and abolishes an puts into oblivion the offense itself. It so overlooks and obliterates the offense with which he is charged, so that the person released by amnesty stands before the law precisely as though he had committed no offense (Barrioquinto v. Fernandez, G.R. No. L-1278, January 21, 1949).

Name at least two exceptions to the general rule that in case of acquittal of the accused in a criminal case, his civil liability is likewise extinguished. '00 – Q5b

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Sentence. As judge, will you grant the petition? ’09 – Q2

Exceptions to the rule that acquittal from a criminal case extinguishes civil liability, are: 1. When the civil action is based on obligations not arising from the act complained of as a felony; 2. When acquittal is based on reasonable doubt or acquittal is on the ground that guilt has not been proven beyond reasonable doubt (Article 29, Civil Code); 3. Acquittal due to an exempting circumstance, like insanity; 4. Where the court states in its judgment that the case merely involves a civil obligation; 5. Where there was a proper reservation for the filing of a separate civil action; 6. In cases of independent civil actions provided for in Articles 31, 32, 33 and 34 of the Civil Code; 7. When the judgment of acquittal includes a declaration that the fact from which the civil liability might arise did not exist (Sapiera v. Court of Appeals, 314 SCRA 370 [1999].); 8. Where the civil liability is not derived or based on the criminal act of which the accused is acquitted (Sapiera v. Court of Appeals, 314 SCRA 370 [1999].)

YES, I will grant the petition because the sentence that was evaded proceeded from the crime of Rebellion which has been obliterated by the grant of amnesty to the offender (Article 89(3), RPC.) Since the amnesty erased the criminal complexion of the act committed by the offender as a crime of rebellion and rendered such act innocent, the sentence lost its legal basis. The purported evasion thereof therefore cannot subsist (People v. Patriarca, 341 SCRA 464 [2000].) Amnesty obliterates, not only the basis of conviction, but also all the legal effects thereof. Enumerate the differences between pardon and amnesty. ’06 – Q4(1)

Amnesty and Pardon Senator Adamos was convicted of plunder. About one year after beginning to serve his sentence, the President of the Philippines granted him absolute pardon. The signed pardon states: "In view hereof, and in pursuance of the authority vested upon me by the Constitution, I hereby grant absolute pardon unto Adamos, who was convicted of plunder in Criminal Case No. XV32 and upon whom the penalty ofreclusion perpetua was imposed." He now comes to you for advice. He wants to know if he could run for senator in the next election. ’15-Q6

The differences between pardon and amnesty are – In pardon: The convict is excused from serving the sentence but the effects of conviction remain unless expressly remitted by the pardon; hence, for pardon to be valid there must be a sentence already final and executory at the time the same is granted. Moreover, the grant is in favor of individual convicted offenders, not to a class of convicted offenders; and the crimes subject of the grant may be common crimes or political crimes. Finally, the grant is a private act of the Chief Executive which does not require the concurrence of any other public officer or office. In amnesty: The criminal complexion of the act constituting the crime is erased, as though such act was innocent when made; hence, the effects of the conviction are obliterated. Amnesty is granted in favor of a class of convicted offenders, not to individual convicted offenders; and the crimes involved are generally political offenses, not common crimes. Amnesty is a public act that requires conformity or concurrence of the Philippine Senate.

a) What advice will you give Adamos? Explain. (2.5%) ’15-Q6a Answer: (a) If I were the counsel of Senator Adamos, I will give him the advice that he cannot run in the Senatorial race since the terms of the pardon has not expressly restored his right to hold public office or remitted the accessory penalty of perpetual absolute disqualification. Under Article 36 of the Revised Penal Code, a pardon shall not work the restoration of the right to hold public office unless such right be expressly restored by the terms of the pardon. Under Article 41, the penalty of reclusion perpetua shall carry with it, perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon (Rissos-Vidal v. Lim, G.R. No. 206666, January 21, 2015)

Under Presidential Proclamation No. 724, amending P.P. No. 347, certain crimes are covered by the grant of amnesty. Name at least 5 of these crimes. ’06 – Q4(2) Crimes covered by the grant of amnesty under Presidential Proclamation No. 724: 1. Rebellion or insurrection; 2. Coup d’état; 3. Conspiracy and proposal to commit rebellion, insurrection or coup d’état;

b) Assuming that what Adamos committed was heading a rebellion for which he was imposed the same penalty of reclu-

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Disloyalty of public officers or employees; Inciting to rebellion or insurrection; Sedition; Conspiracy to commit sedition; Illegal assembly; Illegal association; Direct assault; Indirect assault; Resistance and disobedience to a person in authority or agents of such persons; Tumults and other disturbances of public order; Unlawful use of means of publication and unlawful utterances; Alarms and scandals; Illegal possession of firearms, ammunitions, and explosives, committed in furtherance of, incident to, or in connection with the crimes of rebellion and insurrection; Violations of Articles of War a. Art. 59 (Desertion) b. Art. 62 (Absence without Leave) c. Art. 67 (Mutiny or Sedition) d. Art. 68 (Failure to Suppress Mutiny or Sedition) e. Art. 94 (Various Crimes) f. Art. 96 (Conduct unbecoming an officer and gentleman: g. Art. 97 (General Article)

Prescription of crime Taylor was convicted of a violation of the Election Code, and was sentenced to suffer imprisonment of one year as minimum, to three years as maximum. The decision of the trial court was affirmed on appeal and became final and executory. Taylor failed to appear when summoned for execution of judgment, prompting the judge to issue an order for his arrest. Taylor was able to use the backdoor and left for the United States. Fifteen years later, Taylor returned to the Philippines and filed a Motion to Quash the warrant of arrest against him, on the ground that the penalty imposed against him had already prescribed. ’15 - Q7 a) If you were the judge, would you grant Taylor's Motion to Quash? Explain. (2.5%) ’15 - Q7a Answer: (a) If I were the judge, I will deny the motion to quash. Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been convicted by final judgement by escaping during the term of his sentence. The Taylor never served a single minute of his sentence, and thus, prescription never started to run in his favor. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom (Del Castillo v. Torrecampo, G.R. No. December 18, 2002).

Another Suggested Answer: Crimes covered by the grant of amnesty are: 1. Illegal assembly; 2. Alarms and scandal; 3. Illegal association; 4. Disloyalty by public officers/employees; 5. Illegal possession of firearms.

b) Assuming that instead of the United States, Taylor was able to go to another country with which the Philippines had no extradition treaty, will your answer be the same? Explain. (2.5%) ’15 - Q7b

Can former DSWD Secretary Dinky Soliman apply for amnesty? How about columnist Randy David? ’06 – Q4(3)

(b) Even if Taylor was able to go to another country which the Philippines had no extradition treaty, I will deny the motion to quash. Going to a foreign country with which this Government has no extradition treaty to interrupt the running of prescription is not applicable nor even material because the period of prescription had not commenced to run in the first place; hence, there is nothing to interrupt.

Both Dinky Soliman and Randy David may apply for amnesty because the crime respectively imputed to them are crimes against public order which are among the crimes covered by amnesty. General Lim and General Querubin of the Scout Rangers and Philippine Marines, respectively, were charged with conduct unbecoming an officer and a gentleman under the Articles of War. Can they apply for amnesty? ’06 – Q4(4)

A killed his wife and buries her in their backyard. He immediately went into hiding. Three years later, the bones of A’s wife were discovered by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years in hiding, A left the country but returned after three years to take care of his ailing sibling. Six years later thereafter, he was charged with parricide. ’10 – Q17 1. Under the RPC, when does the period of prescription of a crime commence to run? ’10 – Q17-1

Yes. General Lim and General Querubin of the Scout Rangers and Philippine Marines can apply for amnesty. Violation of conduct unbecoming an officer and a gentleman under Article 96 of the Articles of War is explicitly enumerated in Section 1 of Presidential Proclamation No. 724 as one of the crimes covered by the grant of amnesty. TRY was sentenced to death by final judgment. But subsequently he was granted pardon by the President. The pardon was silent on the perpetual disqualification of TRY to hold any public office. After his pardon, TRY ran for office as Mayor of APP, his hometown. His opponent sought to disqualify him. TRY contended he is not disqualified because he was already pardoned by the President unconditionally. Is TRY'S contention correct? ’04 – Q4b

Generally, the period of prescription of a crime commences to run from the date it was committed; but if the crime was committed clandestinely, the period of prescription of the crimes under the Revised Penal Code commence to run from the day on which the crime was discovered by the offended party, the authorities or their agents (Article 91, RPC.)

NO, TRY's contention is not correct. Article 40 of the RPC expressly provides that when the death penalty is not executed by reason of commutation or pardon, the accessory penalties of perpetual absolute disqualification and civil interdiction during thirty (30) years from the date of the sentence shall remain as effects thereof, unless such accessory penalties have been expressly remitted in the pardon. This is because pardon only excuses the convict from serving the sentence but does not relieve him of the effects of the conviction unless expressly remitted in the pardon.

2.

When it is interrupted? ’10 – Q17-2

The running of the prescriptive period is interrupted when “any kind of investigative proceeding is instituted against the guilty person which may ultimately lead to his prosecution” (Panaguiton, Jr. v. Department of Justice, 571 SCRA 549 [2008].) 3.

Is A’s defense tenable? ’10 – Q17-3

NO, the defense of prescription of the crime is not tenable. The crime committed is parricide which prescribes in twenty (20) years

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (Article 90, RPC.) It was only when the care-taker, Z, found the victim’s bones and reported the matter to the police that the crime is deemed legally discovered by the authorities or their agents and thus the prescriptive period of the crime commenced to run. When A left the country and returned only after three (3) years, the running of the prescriptive period of the crime is interrupted and suspended because prescription shall not run when the offender is absent from the Philippine Archipelago (Article 91, RPC.) Since A had been in hiding for 15 years after the commission of the crime and the prescriptive period started running only after 5 years from such commission when the crime was discovered, only 10 years lapsed and 3 years thereof should be deducted when the prescriptive period was interrupted and suspended. Hence, the 3 years when A was out of the Philippines should be deducted from the 10 years after the period of prescription starts running. Adding the 7 years of prescription and the 6 years that lapsed before the case was filed, only a total of thirteen (13) years had lapsed. Hence, the crime has not yet prescribed.

NO, the Fiscal's dismissal of the case on alleged prescription is not correct. The filing of the complaint with the Municipal Trial Court, although only for preliminary investigation, interrupted and suspended the period of prescription in as much as the jurisdiction of a court in a criminal case is determined by the allegations in the complaint or information, not by the result of proof (People v. Galano, 75 SCRA 193 [1977].) [Note: In Panaguiton, Jr. v. Department of Justice, 571 SCRA 549 [2008], it was held that “The prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the accused.”] One fateful night in January 1990, while 5-year old Albert was urinating at the back of their house, he heard a strange noise coming from the kitchen of their neighbor and playmate, Ara. When he peeped inside, he saw Mina, Ara's stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina carry the dead body of Ara, place it inside the trunk of her car and drive away. The dead body of Ara was never found. Mina spread the news in the neighborhood that Ara went to live with her grandparents in Ormoc City. For fear of his life, Albert did not tell anyone, even his parents and relatives, about what he witnessed. Twenty and a half (20 & ½) years after the incident, and right after his graduation in Criminology, Albert reported the crime to NBI authorities. The crime of homicide prescribes in 20 years. Can the state still prosecute Mina for the death of Ara despite the lapse of (20 & ½) years? '00 – Q7

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador witnessed the entire incident, but was so scared to tell the authorities about it. On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged in court, Baldo claims that the crime he committed had already prescribed. Is Baldo’s contention correct? ’09 – Q6 NO, Baldo’s contention is not correct because the crime committed has not yet prescribed. The prescriptive period of the crime committed commenced to run only after it was reported to the police on January 2, 1970, not on the date it was clandestinely committed on January 2, 1960. Under the discovery rule, which governs a crime is not publicly committed, the prescriptive period of a crime commences to run only from the day on which the crime is discovered by the offended party, the authorities or their agents; this case, from January 2, 1970, when it was made known to the police authorities until January 2, 1980, when Baldo was arrested and charged. The killing committed, whether homicide or murder, is punishable by an afflictive penalty which prescribes in twenty (20) years, whereas only around ten (10) years had lapsed from January 2, 1970 (when the authorities discovered the commission of the crime) to January 2, 1980 (when the accused was charged in court.)

YES, the State can still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years. Under Article 91, RPC, the period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. In the case at bar, the commission of the crime was known only to Albert, who was not the offended party nor an authority or an agent of an authority. It was discovered by the NBI authorities only when Albert revealed to them the commission of the crime. Hence, the period of prescription of 20 years for homicide commenced to run only from the time Albert revealed the same to the NBI authorities. Civil Liabilities in Criminal Cases Acquittal Does Not Extinguish Civil Liability

OW is a private person engaged in cattle ranching. One night, he saw AM stab CV treacherously, then throw the dead man's body into a ravine. For 25 years, CV’s body was never seen nor found; and OW told no one what he had witnessed. Yesterday after consulting the parish priest, OW decided to tell the authorities what he witnessed, and revealed that AM had killed CV 25 years ago. Can AM be prosecuted for murder despite the lapse of 25 years? '04 – Q4a

A was a 17-year old working student who was earning his keep as a cigarette vendor. B was driving a car along busy Espana Street at about 7 PM. Beside B was C. The car stopped at an intersection because of the red signal of the traffic light. While waiting for the green signal, C beckoned A to buy some cigarettes. A approached the car and handed two sticks of cigarettes to C. While the transaction was taking place, the traffic light changed to green and the car immediately sped off. As the car continued to speed towards Quiapo, A clung to the window of the car but lost his grip and fell down on the pavement. The car did not stop. A suffered serious injuries which eventually caused his death. C was charged with ROBBERY with HOMICIDE. In the end, the Court was not convinced with moral certainty that the guilt of C has been established beyond reasonable doubt and, thus, acquitted him on the ground of reasonable doubt. Can the family of the victim still recover civil damages in view of the acquittal of C? ’00 – Q9

YES, AM can be prosecuted for murder despite the lapse of 25 years, because the crime has not yet prescribed and legally, its prescriptive period has not even commenced to run. The period of prescription of a crime shall commence to run only from the day on which the crime has been discovered by the offended party, the authorities or their agents (Art. 91, RPC). OW, a private person who saw the killing but never disclosed it, is not the offended party nor has the crime been discovered by the authorities or their agents.

YES, as against C, A's family can still recover civil damages despite C's acquittal. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence (Article 29, NCC.) If A's family can prove the negligence of B by preponderance of evidence, the civil action for damages against B will prosper based on quasi-delict. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, without a pre-existing contractual relation between the parties, is called a quasi-delict (Article 2176, NCC.) This is

On June 1, 1988, a complaint for concubinage committed in February 1987 was filed against Roberto in the MTC of Tanza, Cavite for purposes of preliminary investigation. For various reasons, it was only on July 3, 1998 when the Judge of said court decided the case by dismissing it for lack of jurisdiction since the crime was committed in Manila. The case was subsequently filed with the City Fiscal of Manila but it was dismissed on the ground that the crime had already prescribed. The law provides that the crime of concubinage prescribes in ten (10) years. Was the dismissal by the fiscal correct? '01 – Q16

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers entirely separate and distinct from civil liability arising from negligence under the Penal Code (Articles 31, 2176 & 2177, NCC.)

CRIMINAL LAW 2 Crimes against National Security and Laws of Nation

Subsidiary Civil Liability

Treason

Guy, while driving a passenger jeepney owned and operated by Max, bumped Demy, a pedestrian crossing the street. Demy sustained injuries which required medical attendance for three months. Guy was charged with reckless imprudence resulting to physical injuries. Convicted by the MTC, Guy was sentenced to suffer a straight penalty of 3 months of arresto mayor and ordered to indemnify Demy in the sum of P5,000 and to pay P1,000 as attorney's fees. Upon finality of the decision, a writ of execution was served upon Guy, but was returned unsatisfied due to his insolvency. Demy moved for a subsidiary writ of execution against Max. The latter opposed the motion on the ground that the decision made no mention of his subsidiary liability and that he was not impleaded in the case. How will you resolve the motion? '98 – Q11

Which of the following circumstances may be appreciated as aggravating in the crime of treason? ’12 - Q42 a) cruelty and ignominy; b) evident premeditation; c) superior strength; d) treachery. SUGGESTED ANSWER: a) cruelty and ignominy; Treachery and abuse of superior strength are by their nature, inherent in the offense of treason and may not be taken to aggravate the penalty (People vs. Adlawan, G.R. No. L-456, march 29, 1949). Evident premeditation is inherent in treason because adherence and the giving of aid and comfort to the enemy is a long continued process requiring for the successful consummation of the traitor’s purpose a fixed, reflective and persistent determination and planning (People vs. Racaza, G.R. No. L-365, January 21, 1949). However, cruelty may be appreciated in treason by deliberately augmenting the wrong by being unnecessarily cruel to capture guerilla suspects, subjecting them to barbarous forms of torture and finally putting them to death and ignominy by arresting and maltreating a guerilla suspect and then stripping his wife of her clothes and then abusing her together with other Filipino girls (People vs. Adlawan, supra).

The motion is to be granted. Max as an employer of Guy and engaged in an industry (transportation business) where said employee is utilized, is subsidiarily civilly liable under Article 103 of the RPC. Even though the decision made no mention of his subsidiary liability, the law violated (Revised Penal Code) itself mandates for such liability and Max is deemed to know it because ignorance of the law is never excused. And since his liability is not primary but only subsidiary in case his employee cannot pay; he need not be impleaded in the in the criminal case. It suffices that he was duly notified of the motion for issuance of a subsidiary writ of execution and thus given the opportunity to be heard.

Can the crime of treason be committed only by a Filipino citizen? ’12 - Q45 a) Yes. The offender in the crime of treason is a Filipino citizen only because the first element is that the offender owes allegiance to the Government of the Philippines. b) No. The offender in the crime of treason is either a Filipino citizen or a foreigner married to a Filipino citizen, whether residing in the Philippines or elsewhere, who adheres to the enemies of the Philippines, giving them aid or comfort. c) No. The offender in the crime of treason is either a Filipino citizen or an alien residing in the Philippines because while permanent allegiance is owed by the alien to his own country, he owes a temporary allegiance to the Philippines where he resides. d) Yes. It is not possible for an alien, whether residing in the Philippines or elsewhere, to commit the crime of treason because he owes allegiance to his own country. SUGGESTED ANSWER: c) No. The offender in the crime of treason is either a Filipino citizen or an alien residing in the Philippines because while permanent allegiance is owed by the alien to his own country, he owes a temporary allegiance to the Philippines where he resides. A foreigner owes temporary allegiance to the government of the place wherein he resides in return for the protection he receives. Such temporary allegiance continues during the period of his residence. If an alien, while residing in a foreign county, does an act which would amount to treason if committed by a citizen of that country, he will be held liable for treason (52 Am Jur 797). Furthermore, Article 114 of the Revised Penal code punishes a resident alien for committing treason.

Indemnification The accused was found guilty of 10 counts of rape for having carnal knowledge with the same woman. In addition to the penalty of imprisonment, he was ordered to pay indemnity in the amount of P50,000 for each count. On appeal, the accused questions the award of civil indemnity for each count, considering that the victim is the same woman. How would you rule on the contention of the accused? '05 – Q3(3) The contention of the accused is without merit. Each count of rape is a violation of the person of the victim and thus gives rise to corresponding criminal and civil liabilities. The trial court is correct in imposing a penalty for each rape and awarding corresponding civil indemnity for each count even though the victim is the same woman. Rape is not a continued crime. Damages In a crime of homicide, the prosecution failed to present any receipt to substantiate the heirs’ claim for an award of actual damages, such as expenses for the wake and burial. What kind of damages may the trial court award to them and how much? ’06 – Q14 45 The damages that the trial court may award are: 1. Civil indemnity for the loss of life of the victim which jurisprudence has set at P75,000; 2. Moderate / temperate damages for the expenses incurred for the wake and burial of the victim as the trial court may consider reasonable; and 3. Moral damages for the sufferings of the victim emotionally and mentally.

Espionage What is the crime committed by a public officer who discloses to the representative of a foreign nation the contents of the articles, data or information of a confidential nature relative to the defense of the Philippine archipelago which he has in his possession by reason of the public office he holds? ’12 - Q43 a) espionage; b) disloyalty; c) treason; d) violation of neutrality. SUGGESTED ANSWER: a) espionage; Espionage is committed bu public officer, who is in possession, by reason of the public office he holds, of the articles, data, or information of a confidential nature relative to the defense of the Philippine ar-

[Note: In cases of murder and homicide, civil indemnity of P75,000 and moral damages of P50,000 are awarded automatically, without need of allegation and proof other than the death of the victim (People v. Milan, 653 SCRA 607 [2011]; People v. Torres, Sr., 655 SCRA 720 [2011].)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers chipelago, discloses their contents to a representative of a foreign nation (Article 117 of the Revised Penal Code).

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? ’17 – Q11 (a) Interruption of religious worship as defined and punished under Art. 132 of the Revised Penal Code; and/or SUGGESTED ANSWER (a) Policeman Slone may be charged with Interruption of religious worship. Under the Revised Penal Code, a public officer or employee who shall prevent or disturb the ceremonies or manifestations of any religion shall be liable for interruption of religious worship. Hence, Policeman Slone, a public officer, approached the priest, displayed his firearm, and threatened the priest, which caused the disruption of the mass and the leaving of the congregation. Policeman Slone, therefore, may be charged of interruption or religious worship. (b) Offending the religious feelings as defined and punished under Art. 133 of the Revised Penal Code. Explain fully your answers. (8%) SUGGESTED ANSWER (b) Policeman Stone may not be charged with the crime or offending religious feelings. The Supreme Court has ruled that the acts must be directed against religious practice or dogma or ritual for the purpose or ridicule, as mocking or scoffing at or attempting to damage an object of religious veneration (People v. Baes, G.R. No. 46000, May 25, 1939). Policeman Stone threatened the priest because of the priest's statements during his homily and not to mock or ridicule the ceremony; consequently, Policeman Stone may not be charged with the crime of offending religious feelings.

Misprision of Treason Insuperable cause is an exempting circumstance which may be applied to: ’11 – Q52 (A) robbery. (B) misprision of treason. (C) homicide. (D) rebellion. Because peace negotiations on the Spratlys situation had failed, the People’s Republic of China declared war against the Philippines. Myra, a Filipina who lives with her Italian expatriate boyfriend, discovered an e-mail correspondence between him and a certain General Tung Kat Su of China. On March 12, 2010, Myra discovered that on even date, her boyfriend has sent an e-mail to General Tung Kat Su, in which he agreed to provide vital information on the military defense of the Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime? ’10 – Q21 YES, Myra committed the crime of Misprision of Treason under Article 116 of the Revised Penal Code, for failing to report or make known “as soon as possible” to the governor or provincial fiscal or to the mayor or fiscal of the City where she resides, the conspiracy between her Italian boyfriend and the Chinese General to commit treason against the Philippine Government in time of war. She decided to report the matter to the proper authorities only after two (2) weeks. Piracy The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbour of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong, took advantage of the confusion to settle an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court. ’08 – Q7 1. Was the charge of qualified piracy against Max, Baldo and Bogart who boarded the inter-island vessel correct? ’08 – Q7-1

Arbitrary Detention What are the 3 ways of committing arbitrary detention? ’06 – Q3(1)

YES, they (Max, Baldo and Bogart) boarded and fired upon the ship and divested the passengers of their money and jewelry (Articles 122, 123, as amended by R.A No. 7659 and P.D. No. 532.) As long as murder or homicide is committed as a result of or on the occasion of piracy, the special complex crime of qualified piracy is committed. 2.

Three (3) ways of committing arbitrary detention are: 1. By detaining or locking up a person without any legal cause or ground therefor purposely to restrain his liberty (Article 124, RPC); 2. By delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant (Article 125, RPC); and 3. By delaying release of a prisoner whose release has been ordered by competent authority (Article 126, RPC); In all the above-stated ways, the principal offender should be a public officer acting under color of authority.

Was Dodong correctly charged before the Philippine court for qualified piracy? ’08 – Q7-2

NO. The crime committed by Dodong is either murder or homicide. He may not be charged with qualified piracy because he was only a passenger and not in conspiracy with Max, Baldo and Bogart. The Philippine Court has no jurisdiction over the killing committed by Dodong in Taiwan.

What are the legal grounds for detention? ’06 – Q3(2) The legal grounds for detention are: 1. Commission of a crime; 2. Violent insanity or other ailment requiring compulsory confinement in an institution established for such purpose.

Another Alternative Answer: Dodong was correctly charged before the Philippine court, though it should be for murder or homicide because he did not act in conspiracy or concert with the pirates. Under the territorial principle of jurisdiction in International Law, the Philippine court will have jurisdiction over the offense of murder or homicide because it was committed on a vessel of Philippine registry, and the crime is also cognizable by the courts of Kaoshiung, Taiwan.

When is an arrest by a peace officer or by a private person considered lawful? ’06 – Q3(3) Arrest by a peace officer or by a private person is lawful – 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

Crimes against the Fundamental Laws of the State

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 2.

3.

When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving sentence or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Section 5, Rule 113, Rules on Criminal Procedure.)

Trespass to dwelling is committed only in one way; that is, by entering the dwelling of another against the express or implied will of the latter. Crimes against Public Order Rebellion Proposal to commit felony is punishable only in cases in which the law specifically provides a penalty therefor. Under which of the following instances are proponents NOT liable? ’12 – Q7 a) Proposal to commit coup d'etat. b) Proposal to commit sedition. c) Proposal to commit rebellion. d) Proposal to commit treason. SUGGESTED ANSWER: b) Proposal to commit sedition. Proposal to commit treason, rebellion or coup d’etat is punishable but proposal to commit sedition is not.

Delay in the Delivery of Detained Persons Amy was apprehended and arrested by Patrolman Bart for illegal parking. She was detained at the police precinct, underwent investigation, and released only after 48 hours. ’90 – Q11 1. Is Patrolman Bart liable for any offense? ’90 – Q11-1 Patrolman Bart is liable for violation of Article 125 of the RPC – Delay in the Delivery of Persons to the Proper Judicial Authorities. 2.

Distinguish by way of illustration conspiracy as a felony from conspiracy as a manner of incurring liability in relation to the crimes of rebellion and murder. (5%) ’12 – QIXb Conspiracy to commit rebellion – If “A” and “B” conspired to overthrow the government, conspiracy is punishable. Conspiracy to commit rebellion is a felony. Rebellion – If they committed rebellion, they are equally liable for the crime of rebellion. However, they will not be additionally charged for conspiracy to commit rebellion. Since they committed what they conspired, conspiracy will not be considered as an independent felony but as a manner of incurring criminal responsibility. Conspiracy to commit homicide, not punishable – If “A” and”B” conspired to kill “X”, conspiracy is not punishable. The law provides no penalty for conspiracy to commit homicide. Homicide – If pursuant to conspiracy to commit homicide, “A” embraced “X” and then “B” stabbed and killed “X”, the conspirators are equally liable for homicide. Conspiracy in this case will be considered as a manner of incurring liability.

Supposed Amy resisted the arrested and grappled with Patrolman Bart, is she criminally liable thereby? ’90 – Q11-2

She is criminally liable for slight disobedience under Article 151 of the RPC – Resistance and disobedience to a person in authority or the agents of such person. Expulsion What is the criminal liability, if any, of a mayor who, without being authorized by law, compels prostitutes residing in his city to go to, and live in, another place against their will? ’12 - Q34 a) The mayor is criminally liable for violation of domicile. b) The mayor is criminally liable for expulsion. c) The mayor is criminally liable for grave coercion. d) The mayor incurs no criminal liability because he merely wants to protect the youth against the indecency of the prostitutes. SUGGESTED ANSWER: b) The mayor is criminally liable for expulsion. The prostitutes are not chattels but human beings protected by the constitutional guarantees such as the provision on liberty of abode. The mayor could not even for the most praiseworthy of motives render the liberty of the citizen so insecure. No occicial, no matter how high, is above the law (Villavicencio vs. Lukban, G.R. No. 14639, March 25, 1919). A public officer, who, not being thereunto authorized by law, shall compel persons to change their residence is liable for the crime of expulsion under Article 127 of the Revised Penal Code.

What is the proper charge against public officers or employees who, being in conspiracy with the rebels, failed to resist a rebellion by all means in their power, or shall continue to discharge the duties of their offices under the control of the rebels, or shall accept appointment to office under them? ’12 - Q36 a) disloyalty of public officers or employees; b) rebellion; c) conspiracy to commit rebellion; d) dereliction of duty. SUGGESTED ANSWER: b) rebellion; The crime of disloyalty of public office is committed by public officers who have failed to resist a rebellion by all the means in their power, or shall continue to discharge the duties their offices under the control of the rebels or shall accept appointment to office under them (Article 137 of the Revised Penal Code). However, the public officer who performs any of the acts of disloyalty should not be in conspiracy with the rebels; otherwise, he will be guilty of rebellion, not merely disloyalty, because in conspiracy, the act of one is the act of all (The Revised Penal Code by CA Justice Luis Reyes). Since in the facts given, the public officers performed acts of disloyalty in conspiracy with the rebels, the crime committed is rebellion.

Violation of domicile The statement that “A policeman, who without a judicial order, enters a private house over the owner’s opposition, is guilty of trespass to dwelling” is FALSE. ’09 – Q1e The crime committed by the policeman in this case is violation of domicile because the official duties of a policeman carry with it an authority to make searches and seizures upon judicial order. He is therefore acting under color of his official authority (Article 128, RPC.)

What is the proper charge against a person who, without taking arms or being in open hostility against the Government, shall incite others to deprive Congress of its legislative powers, by means of speeches or writings? ’12 - Q37 a) inciting to sedition; b) inciting to rebellion or insurrection; c) crime against legislative body; d) unlawful use of means of publication or unlawful utterances. SUGGESTED ANSWER: b) inciting to rebellion or insurrection; Depriving Congress of its legislative powers is an object of rebellion. Hence, inciting others to attain the purpose of rebellion by means of speeches or writings constitutes inciting to sedition. ALTERNATIVE ANSWER: d) unlawful use of means of publication or unlawful utterances.

What is the difference between violation of domicile and trespass to dwelling? '02 – Q6a The differences between violation of domicile and trespass to dwelling are: The offender in violation of domicile is a public officer acting under color of authority; in trespass to dwelling, the offender is a private person or public officer acting in a private capacity. Violation of domicile is committed in 3 different ways: (1) by entering the dwelling of another against the will of the latter; (2) searching papers and other effects inside the dwelling without the previous consent of the owner; or (3) refusing to leave the premises which he entered surreptitiously, after being required to leave the premises.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Inciting to sedition is committed by person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches or writings (Article 142 of the Revised Penal Code). To commit inciting to sedition, the offender must incite others to rise publicly and tumultuously in order to attain any of the ends of sedition (People vs. Arrogante, 39 O.G. 1974). In sum, the offender must incite others not only to accomplish any purpose of sedition (such as preventing the national government or a public officer from freely exercising its or his function) but likewise to perform the acts of sedition (rsing publicly and tumultuously). In the facts given, the sedition purpose, is not committing inciting to sedition. Hence, “a” is not the answer. Inciting to rebellion or insurrection is committed by a person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts specified in Article 134 of the Revised Penal Code by means of speeches and writings (Article 138). The clause “shall incite others to the execution of any of the acts specified in Article 134” meant that the offender shall incite others to rise publicly and take up arms against the government for any of the purpose of rebellion (The Revised Penal Code by CA Justice Luis Reyes). To be held liable for inciting to rebellion, the offender must incite others not only to accomplish any purpose of rebellion (such as depriving legislature of its own power) but likewise to perform the acts of rebellion (rising publicly and taking up arms against the government). In the facts given, the person, who merely incited others to accomplish a rebellious purpose, is not committing inciting to rebellion. Hence, “b” is not the answer. Preventing the meeting of Congress through force or fraud constitutes the crime against popular representation (Article 143). In the facts given, the person did not employ fraud or intimidation to prevent members of Congress from attending its meeting. Hence, “c” is not the answer. Unlawful use of means of publication or unlawful utterances a person who by speeches or other means of publication, shall encourage disobedience to the constituted authorities (Article 154). Inciting others to deprive Congress of its legislative power constitutes unlawful utterances. Hence, “d” is the answer.

(D) highway robbery. On May 5, 1992, at about 6 AM, while Governor Alegre of Laguna was on board his car traveling along the National Highway of Laguna, Joselito and Vicente shot him on the head resulting in his instant death. At that time, Joselito and Vicente were members of the liquidation squad of the New People's Army and they killed the governor upon orders of their senior officer. Commander Tiago. According to Joselito and Vicente, they were ordered to kill Governor Alegre because of his corrupt practices. If you were the prosecutor, what crime will you charge Joselito and Vicente? ’98 – Q3 If I were the prosecutor, I would charge Joselito and Vicente with the crime of rebellion, considering that the killers were members of the liquidation squad of the New People's Army and the killing was upon orders of their commander; hence, politically-motivated. This was the ruling in People v. Avila, 207 SCRA 156 [1992] involving identical facts which is a movement taken judicial notice of as engaged in rebellion against the Government. Alternative Answer: If I were the prosecutor, I would charge Joselito and Vicente for the crime of murder as the purpose of the killing was because of his “corrupt practices”, which does not appear to be politically motivated. There is no indication as to how the killing would promote or further the objective of the New People’s Army. The killing is murder because it was committed with treachery. Alternative Answer: The crime should be rebellion with murder considering that Article 135 of the RPC has already been amended by R.A. No. 6968, deleting from said Article, common crimes which used to be punished as part and parcel of the crime of rebellion. The ruling in People v. Hernandez, 99 Phil. 515 (1994), that rebellion may not be completed with common crimes committed in furtherance thereof, was because the common crimes were then penalized in Art. 135 together with the rebellion, with one penalty and Article 48 of the RPC cannot be applied. Art. 135 of said Code remained exactly the same when the case of Enrile v, Salazar, 186 SCRA 217 (1990) was resolved. Precisely for the reason that Article 48 cannot apply because the common crimes were punished as part of rebellion in Art. 135, that this Article was amended, deleting the common crimes therefrom. That the common crimes were deleted from said Article, demonstrates a clear legislative intention to treat the common crimes as distinct from rebellion and remove the legal impediment to the application of Art. 48. It is noteworthy that in Enrile v. Salazar (supra) the Supreme Court said these: “There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that if it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is purely within its province.” And significantly the said amendment to Article 135 of the RPC was made at around the time the ruling in Salazar was handled down, obviously to neutralize the Hernandez and the Salazar rulings. The amendment was sort of a rider to the coup d’état law, R.A. No. 6968.

What is the crime committed when a group of persons entered the municipal building rising publicly and taking up arms in pursuance of the movement to prevent exercise of governmental authority with respect to the residents of the municipality concerned for the purpose of effecting changes in the manner of governance and removing such locality under their control from allegiance to the laws of the Government? ’12 - Q38 a) sedition; b) coup d'etat; c) insurrection; d) public disorder. SUGGESTED ANSWER: c) insurrection; The term”insurrection” is more commonly employed in reference to a movement which seeks merely to effect some change of minor importance or to prevent the exercise of government authority with respect to the particular matters of subjects (The Revised Penal Code by CA Justice Luis Reyes). Insurrection is punishable under Article 134 of the Revised Penal Code. In the facts given, this crime is committed since there is a public uprising and taking up arms against the government for purpose of removing the locality under the control of the offenders from the allegiance to the laws of the government (See: People vs. Almazan, 37 O.G. 1932). When committed outside the Philippine territory, our courts DO NOT have jurisdiction over the crime of: ’11 – Q56 (A) treason. (B) piracy. (C) espionage. (D) rebellion.

VC, JG. GG and JG conspired to overthrow the Philippine Government. VG was recognized as the titular head of the conspiracy. Several meetings were held and the plan was finalized. JJ, bothered by his conscience, confessed to Father Abraham that he, VG, JG and GG have conspired to overthrow the government. Father Abraham did not report this information to the proper authorities. Did Father Abraham commit a crime? If so, what crime was committed? What is his criminal liability? '94 – Q14

A proposal to commit a felony is punishable only when the law specifically provides a penalty for it as in the case of proposal to commit: ’11 – Q75 (A) rebellion. (B) sedition. (C) espionage.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers NO, Father Abraham did not commit a crime because the conspiracy involved is one to commit rebellion, not a conspiracy to commit treason which makes a person criminally liable under Article 116, RPC. And even assuming that it will fall as misprision of treason, Father Abraham is exempted from criminal liability under Article 12, par. 7, RPC, as his failure to report can be considered as due to “insuperable cause”, as this involves the sanctity and inviolability of a confession. Conspiracy to commit rebellion results in criminal liability to the co-conspirators, but not to a person who learned of such and did not report to the proper authorities (U.S. v. Vergara, 3 Phil. 432; People v. Atienza. 56 Phil. 353 [1931].)

any person or persons belonging to the military or the national police or a public officer, whereas rebellion does not so require. Moreover, the crime of coup d’état may be committed singly, whereas rebellion requires a public uprising and taking up arms to overthrow the duly constituted government. Since the two crimes are essentially different and punished with distinct penalties, there is no legal impediment to the application of Article 48 of the RPC. Can there be a complex crime of coup d’état with sedition? '03 – Q10c YES, coup d’état can be complexed with sedition because the two crimes are essentially different and distinctly punished under the Revised Penal Code. Sedition may not be directed against the Government or non-political in objective, whereas coup d’état is always political in objective as it is directed against the Government and led by persons or public officer holding public office belonging to the military or national police. Article 48 of the Code may apply under the conditions therein provided.

Coup d’état How is the crime of coup d'etat committed? ’12 - Q35 a) By rising publicly and taking arms against the Government for the purpose of depriving the Chief Executive of any of his powers or prerogatives. b) When a person holding public employment undertakes a swift attack, accompanied by strategy or stealth, directed against public utilities or other facilities needed for the exercise and continued possession of power for the purpose of diminishing state power. c) When persons rise publicly and tumultuously in order to prevent by force the National Government from freely exercising its function. d) When persons circulate scurrilous libels against the Government which tend to instigate others to meet together or to stir up the people against the lawful authorities. SUGGESTED ANSWER: b) When a person holding public employment undertakes a swift attack, accompanied by strategy or stealth, directed against public utilities or other facilities needed for the exercise and continued possession of power for the purpose of diminishing state power. The crime of coup d’etat is a swift attack accompanied by violence, intimidation, threat, strategy of stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office of employment, with or without civilian support or participation for the purpose of seizing or diminishing state power (Article 134-A of the Revised Penal Code).

A group of persons belonging to the armed forces makes a swift attack, accompanied by violence, intimidation and threat against a vital military installation for the purpose of seizing power and taking over such installation. '02 – Q19 1. What crime or crimes are they guilty of? '02 – Q19-1 The perpetrators, being persons belonging to the Armed Forces, would be guilty of the crime of coup d’état, under Article 134-A of the RPC, as amended, because their attack was against vital military installations which are essential to the continued possession and exercise of governmental powers, and their purpose is to seize power by taking over such installations. 2.

If the attack is quelled but the leader is unknown, who shall be deemed the leader thereof? '02 – Q19-2

The leader being unknown, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the group shall be deemed the leader of said coup d’état (Article 135, RPC.) Inciting to Sedition Which of the following statements constitute Inciting to Sedition? ’11 – Q40 (A) Utterance of statements irritating or obnoxious to the ears of the police officers. (B) Speeches extolling communism and urging the people to hold a national strike and paralyze commerce and trade. (C) Leaders of jeepney and bus associations shouting "Bukas tuloy ang welga hanggang sa magkagulo na!" (D) Speeches calling for resignation of high government officials.

Distinguish clearly but briefly: Between rebellion and coup d’état, based on their constitutive elements as criminal offenses. '04 – Q10(1) REBELLION is committed when a multitude of persons rise publicly in arms for the purpose of overthrowing the duly constituted government, to be replaced by a government of the rebels. It is carried out by force and violence, but need not be participated in by any member of the military, national police or any public officer. COUP D'ETAT is committed when members of the military, Philippine National Police, or public officer, acting as principal offenders, launched a swift attack thru strategy, stealth, threat, violence or intimidation against duly constituted authorities of the Republic of the Philippines, military camp or installation, communication networks, public facilities or utilities needed for the exercise and continued possession of governmental powers, for the purpose of seizing or diminishing state powers. Unlike rebellion which requires a public uprising, coup d’état may be carried out singly or simultaneously and the principal offenders must be members of the military, national police or public officer, with or without civilian support. The criminal objective need not be to overthrow the existing government but only to destabilize or paralyze the existing government.

What are the different acts of inciting to sedition? ’07 – Q6 The different acts which constitute the crime of inciting to sedition are: 1. 2.

3. 4.

Can there be a complex crime of coup d’état with rebellion? '03 – Q10b 5. YES, if there was conspiracy between the offender/ offenders committing the coup d’état and the offenders committing the rebellion. By conspiracy, the crime of one would be the crime of the other and vice versa. This is possible because the offender in coup d’état may be

Inciting others through speeches, writings, banners and other media of presentation to commit acts which constitute sedition; Uttering seditious words, speeches or circulating scurrilous libels against the Government of the Philippines or any of its duly constituted authorities, which tend to disturb or obstruct the performance of official functions, or which tend to incite others to cabal and meet for unlawful purposes; Inciting through the same media of representation rebellious conspiracies or riots; Stirring people to go against lawful authorities, or disturb the peace and public order of the community or of the Government; or Knowingly concealing any of the aforestated evil practices (Article 142, RPC.)

Violation of Parliamentary Immunity

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers What is the criminal liability, if any, of a police officer who, while Congress was in session, arrested a member thereof for committing a crime punishable by a penalty higher than prision mayor? ’12 - Q40 a) The police officer is criminally liable for violation of parliamentary immunity because a member of Congress is privileged from arrest while Congress is in session. b) The police officer is criminally liable for disturbance of proceedings because the arrest was made while Congress was in session. c) The police officer incurs no criminal liability because the member of Congress has committed a crime punishable by a penalty higher than prision mayor. d) The police officer is criminally liable for violation of parliamentary immunity because parliamentary immunity guarantees a member of Congress complete freedom of expression without fear of being arrested while in regular or special session. SUGGESTED ANSWER: c) The police officer incurs no criminal liability because the member of Congress has committed a crime punishable by a penalty higher than prision mayor. Violation of parliamentary immunity is committed by public officer who shall, while the Congress is in regular or special session, arrest any member thereof, except in case such member has committed a crime with a penalty higher than prision mayor (Article 145 of the Revised penal Code).

said Code. And any person who comes to the aid of persons in authority shall be deemed an agent of a person in authority. Accordingly, the attack on C is, in the eyes of the law, an attack on an agent of a person in authority, not just an attack on a student. A, a teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the latter's throwing paper clips at his classmates, twisted his right ear. X went out of the classroom crying and proceeded home located at the back of the school. He reported to his parents Y and Z what A had done to him. Y and Z immediately proceeded to the school building and because they were running and talking in loud voices, they were seen by the barangay chairman, B, who followed them as he suspected that an untoward incident might happen. Upon seeing A inside the classroom, X pointed him out to his father, Y, who administered a fist blow on A, causing him to fall down. When Y was about to kick A, B rushed towards Y and pinned both of the latter's arms. Seeing his father being held by B, X went near and punched B on the face, which caused him to lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband, and also threatened to slap A. Some security guards of the school arrived, intervened and surrounded X, Y and Z so that they could be investigated in the principal's office. Before leaving, Z passed near A and threw a small flower pot at him but it was deflected by B. ’01 – Q15 1. What, if any, are the respective criminal liability of X, Y and Z? ’01 – Q15-1

Illegal Assemblies A, B, and C organized a meeting in which the audience was incited to the commission of the crime of sedition. Some of the persons present at the meeting were carrying unlicensed firearms. What crime, if any, was committed by A, B and C, as well as those who were carrying unlicensed firearms and those who were merely present at the meeting?’12 – Q14 a) Inciting to sedition for A, 8 and C and illegal possession of firearms for those carrying unlicensed firearms. b) Inciting to sedition for A, 8 and C and those carrying unlicensed firearms. c) Illegal assembly for A, 8, C and all those present at the meeting. d) Conspiracy to commit sedition for A, B, C and those present at the meeting. SUGGESTED ANSWER: c) Illegal assembly for A, B, C and all those present at the meeting. Inciting to sedition is not committed since there is no showing that the audience was incited by “A”, “B” and “C” themselves to commit sedition. Conspiracy to commit sedition is not committed since there is no showing that the organizers and audience agreed and decided to commit sedition. The crime committed is Illegal Assembly under Article 146 of the Revised Penal Code. The crime is committed by organizers or leaders of a meeting in which the audience was incited to the commission of the crime of sedition. Persons merely present at such meeting shall likewise be held criminally liable.

X is liable for Direct Assault only, assuming the physical injuries inflicted on B, the Barangay Chairman, to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is a person in authority (Article 152, RPC) and in this case, was performing his duty of maintaining peace and order when attacked. Y is liable for the complex crimes of Direct Assault With Less Serious Physical Injuries for the fist blow on A, the teacher, which caused the latter to fall down. For purposes of the crimes in Articles 148 and 151 of the RPC, a teacher is considered a person in authority, and having been attacked by Y by reason of his performance of official duty, direct assault is committed with the resulting less serious physical injuries completed. Z, the mother of X and wife of Y may only be liable as an accomplice to the complex crimes of direct assault with less serious physical injuries committed by Y. Her participation should not be considered as that of a co-principal, since her reactions were only incited by her relationship to X and Y. as the mother of X and the wife of Y. 2.

Would your answer be the same if B were a barangay tanod only? ’01 – Q15-2

If B were a Barangay Tanod only, the act of X of laying hand on him, being an agent of a person in authority only, would constitute the crime of Resistance and Disobedience under Article 151, since X, a high school pupil, could not be considered as having acted out of contempt for authority but more of helping his father get free from the grip of B. Laying hand on an agent of a person in authority is not ipso facto direct assault, while it would always be direct assault if done to a person in authority in defiance to the latter is exercise of authority.

A, a lady professor, was giving an examination. She noticed B, one of the students, cheating. She called the student's attention and confiscated his examination booklet, causing embarrassment to him. The following day, while the class was going on, the student, B, approached A and, without any warning, slapped her. B would have inflicted further injuries on A had not C, another student, come to A's rescue and prevented B from continuing his attack. B turned his ire on C and punched the latter. What crime or crimes, if any, did B commit? ’02 – Q7, ’13-Q7

Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech. B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approached B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stabbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? '00 – Q7b

B committed two (2) counts of direct assault: one for slapping the professor, A, who was then conducting classes and thus exercising authority; and another one for the violence on the student C, who came to the aid of the said professor. By express provision of Article 152, in relation to Article 148 of the RPC, teachers and professors of public or duly recognized private schools, colleges and universities in the actual performance of their professional duties or on the occasion of such performance are deemed persons in authority for purposes of the crimes of direct assault and of resistance and disobedience in Articles 148 and 151 of

The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers to disturb the dance and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B.

(Article 156, Revised Penal Code) for making the false Order and forging the Judge’s signature thereon, to enable Takas to get out of jail. The guard is liable for (1) direct bribery for agreeing to open the gate in consideration of P10,000.00 and (2) infidelity in the custody of prisoner for consentint to the escape of the prisoner by opening the gate. To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000, she consented. She then prepared an Order requiring the appearance of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden, who in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000 to leave the 2 inmates and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? ’09 – Q10

Who are deemed to be persons in authority and agents of persons in authority? '00 – Q8a Persons in authority are persons directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority (Article 152, RPC.) Agents of persons in authority are persons who by direct provision of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority (Article 152, RPC.) In applying the provisions of Articles 148 and 151 of the RPC, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority (P.D. No. 299, and B.P. Blg. 873).

The crimes committed in this case are as follows: a. Chito committed the crimes of: 1. Delivery of Prisoners from Jail (Article 156, RPC) for working out the escape of prisoners Willy and Vincent; 2. Two counts of Corruption of Public Officials (Article 212, RPC); and 3. Falsification of Public Documents, as a principal by inducement (Article 172(1), RPC.) b. Willy committed the crime of Delivery of Prisoners from Jail (Article 156, RPC) as a principal by indispensable cooperation if he was aware of the criminal plan of Chito to have them escape from prison and he did escape pursuant to such criminal plan; otherwise, he would not be liable for said crime if he escaped pursuant to human instinct only. c. Vincent, being a prisoner serving sentence by final judgment, committed the crime of Evasion of Service of Sentence (Article 157, RPC) for escaping during the term of his imprisonment. d. The Branch Clerk of Court committed the crimes of: 1. Direct Bribery (Article 210, RPC) for accepting the P50,000.00 – in consideration of the Order she issued to enable the prisoners to get out of jail; 2. Falsification of Public Document for forging the judge’s signature on said Order (Article 156, RPC); 3. Delivery of Prisoners from Jail (Article 156, RPC), as a co-principal of Chito by indispensable cooperation for making the false Order and forging the judge’s signature thereon, to enable the prisoners to get out of jail; and 4. Evasion of Service of Sentence (Article 157, RPC), as a co-principal of Vincent by indispensable cooperation for making the false Order that enabled Vincent to evade the service of his sentence. e. Edwin, the jail guard who escorted the prisoners in getting out of jail committed the crimes of: 1. Infidelity in the Custody of Prisoners, specifically conniving with or consenting to Evasion for leaving unguarded the prisoners escorted by him and provide them an opportunity to escape (Article 223, RPC); and 2. Direct Bribery for receiving the P50,000 as consideration for leaving the prisoners unguarded and allowing them the opportunity to escape (Article 210, RPC). f. The jail warden did not commit nor incur a crime there being no showing that he was aware of what his subordinates had done nor of any negligence on his part that would amount to infidelity in the custody of prisoners.

Tumults and other disturbance of public orders When is a disturbance of public order deemed to be tumultuous? ’12 - Q39 a) The disturbance shall be deemed tumultuous i f caused by more than three (3) persons who are armed or provided with means of violence. b) The disturbance shall be deemed tumultuous when a person causes a serious disturbance in a public place or disturbs public performance, function or gathering. c) The disturbance shall be deemed tumultuous when more than three (3) persons make any outcry tending to incite rebellion or sedition or shout subversive or provocative words to obtain any of the objectives of rebellion or sedition. d) The disturbance shall be deemed tumultuous when at least four (4) persons participate in a free-for-all-fight assaulting each other in a confused and tumultuous manner. SUGGESTED ANSWER: a) The disturbance shall be deemed tumultuous if caused by more than three (3) persons who are armed or provided with means of violence. The disturbance of public order shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence (Article 153 of the Revised Penal Code). Delivering prisoners from jail Filthy, a very rich businessman, convinced Loko, a clerk of court, to issue an order of release for Takas, Filthy’s cousin, who was in jail for a drug charge. After receiving P500,000.00, Loko forged the signature of the judge on the order of release and accompanied Filthyto the detention center. At the jail, Loko gave the guard P10,000.00 to open the gate and let Takas out. What crime or crimes did Filthy, Loko, and the guard commit? ‘14Q7 Filthy is liable for (1) delivery of prisoner from jail (Article 156, Revised Penal Code) for working out the escape of prisoner Takas; (2) corruption of publi officials (Article 212, Revised Penal Code) for giving P500,000.00 to Loko; and (3) falsification of public documents, as a principal by inducement (Article 172(1) Revised Penal Code) Loko in conspiracy with Filthy is liable for (1) direct bribery (Article 210, Revised Penal Code) for accepting the P500,000 in consideration of the Order she issued to enable Takas to get out of jail; (2) falsification of public documents for forging the Judge’s signature on said Order (Article 171, Revised Penal Code); (3) delivery of prisoners from jail

A, a detention prisoner, was taken to a hospital for emergency medical treatment. His followers, all of whom were armed, went to the hospital to take him away or help him escape. The prison guards, seeing that they were outnumbered and that resistance would endanger the lives of other patients, deckled to allow the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers prisoner to be taken by his followers. What crime, if any, was committed by A's followers? '02 – Q6b

of the prisoner, either detention prisoner or prisoner by final judgment; hence, letters “b” and “c” are not the answer. Evasion of service of sentence (Article 157) can only be committed by a prisoner by final judgment, and not by a mere detention prisoner (Curiano vs. CFI, G.R. No. L-8104, April 15, 1955). Hence, “D” is not the answer. The escape does not incur criminal liability.

A's followers shall be liable as principals in the crime of delivery of prisoner from Jail (Article 156, RPC). The felony is committed not only by removing from any jail or penal establishment any person confined therein but also by helping in the escape of such person outside of said establishments by means of violence, intimidation, bribery, or any other means.

Manny killed his wife under exceptional circumstances and was sentenced by the RTC of Dagupan City to suffer the penalty of destierro during which he was not to enter the city. While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila. 1. Did Manny commit any crime? '98 – Q10-1

Evasion of Service of Sentence Dancio, a member of a drug syndicate, was a detention prisoner in the provincial jail of X Province. Brusco, another member of the syndicate, regularly visited Dancio. Edri, the guard in charge who had been receiving gifts from Brusco everytime he visited Dancio, became friendly with him and became relaxed in the inspection of his belongings during his jail visits. In one of Brusco's visits, he was able to smuggle in a pistol which Dancio used to disarm the guards and destroy the padlock of the main gate of the jail, enabling Dancio to escape. What crime(s) did Dancio, Brusco and Edri commit? Explain. (5%) ’15-Q15

YES. Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro. A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty (People v. Abilong, 82 Phil. 172). 2.

ANSWER: Dancio did not commit the crime of evasion of service of sentence under Article 157 of the Revised Penal Code because this crime can only be committed by a convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. Dancio is only a detention prisoner and not a convict. He is not serving sentence by reason of final judgment but merely undergoing preventive imprisonment. By escaping while undergoing preventive imprisonment, he is not evading the service of his sentence.

If so, where should he be prosecuted? '98 – Q10-2

Manny may be prosecuted in Dagupan City or in Manila where he was arrested. This is so because evasion of service of sentence is a continuing offense, as the convict is a fugitive from justice in such case (Parulan v. Dir. of Prisons, L- 28519, 17 Feb. 1968) Crimes against Public Interest Forgery Mr. Gray opened a savings account with Bank A with an initial deposit of P50,000.00. A few days later, he deposited a check for P200,000.00 drawn from Bank B and endorsed by Mr. White. Ten days later, Mr. Gray withdrew theP200,000.00 from his account. Mr. White later complained to Bank B when the amount of P200,000.00 was later debited to his account, as he did not issue the check and his signature thereon was forged. Mr. Gray subsequently deposited another check signed by Mr. Whitefor P200,000.00, which amount he later withdrew. Upon receiving the amount, Mr. Gray was arrested by agents of the National Bureau of Investigation (NBI). Mr. Gray was convicted of estafa and attempted estafa, both through the use of commercial documents. ‘14-Q25 (A) Mr. Gray claims as defense that, except for Mr. White’s claim of forgery, there was no evidence showing that he was the author of the forgery and Mr. White did not suffer any injuries as to the second check (attempted estafa). Rule on the defense of Mr. Gray. The defense of Mr. Gray that there is no evidence showing that he was the author of the forgery is unmeritorious. The law provides the presumption that the possessor and user of a falsified document is te one who falsified the same. His contentio that Mr. White did not suffer injuries is likewise bereft of merit. Damage or intent to cause damage is not considered in attempted estafa, only in consummated estafa. (B) Mr. Gray claims that he was entrapped illegally because there was no showing that the second check was a forgery and, therefore, his withdrawal based on the second check was a legal act. Is Mr. Gray correct? Since the first check is forged, such circumstance justifies the entrapment of Mr. Gray since there is already probable cause that the second check is also forged. Moreover, even assuming that the entrapment is illegal, it will not validate the withdrawal based on the second check, which is also forged. The criminality in forging the second check is not affected by the alleged illegality of the entrapment operation.

However, Dancio committed the crime of direct assault under Article 148 for disarming the guards with the use of pistol while they are engaged in the performance of their duties. Using a pistol to disarm the guards manifests criminal intention to defy the law and its representative at all hazard. [Note: Illegal possession of firearms may also be considered.] Edri committed infidelity in the custody of prisoner or evasion through negligence under Article 224. As the guard in charge, Edri was negligent in relaxing the inspection of the Brusco’s belongings during jail visits allowing him to smuggle a pistol to Dencio, which he subsequently used to escape. By accepting gifts from Brusco, who was part of the syndicate to which Dancio belonged, he is also guilty of indirect bribery under Article 211. Brusco committed delivery of prisoner from jail under Article 156, qualified by his bribery of Edri. Helping a person confined in jail to escape constitutes this crime. “Helping” means furnishing the prisoner with the material means or tools which greatly facilitate his escape; hence, providing a pistol which helped Dencio to escape is delivery of prisoner from jail. The guard was entrusted with the conveyance or custody of a detention prisoner who escaped through his negligence. What is the criminal liability of the escaping prisoner? ’12 – Q25 a) The escaping prisoner does not incur criminal liability. b) The escaping prisoner is liable for evasion through negligence. c) The escaping prisoner is liable for conniving with or consenting to, evasion. d) The escaping prisoner is liable for evasion of service of sentence. SUGGESTED ANSWER: a) The escaping prisoner does not incur criminal liability. Evasion through negligence (Article 224 of the Revised Penal Code) and conniving with or consenting to evasion (Article 223) are crimes committed by public officer in charged with the conveyance or custody

How is “forging” committed? ’99 – Q13a FORGING or forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; or by erasing, substituting, counterfeit-

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers ing, or altering by any means the figures, letters, words or signs contained therein.

How is “falsification” committed? ’99 – Q13a FALSIFICATION, on the other hand, is committed by: 1. Counterfeiting or imitating any handwriting, signature or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

Is mere possession of false money bills punishable under Article 168 of the RPC? ’99 – Q13b NO. Possession of false treasury or bank note alone, without intent to use it, is not punishable. But the circumstances of such possession may indicate intent to utter, sufficient to consummate the crime of illegal possession of false notes. The accused was caught in possession of 100 counterfeit P20 bills. He could not explain how and why he possessed the said bills. Neither could he explain what he intended to do with the fake bills. Can he be held criminally liable for such possession? Decide. ’99 – Q13c YES. Knowledge that the note is counterfeit and intent to use it may be shown by the conduct of the accused. So, possession of 100 false bills reveal: (a) knowledge that the bills are fake; and (b) intent to utter the same.

A falsified official or public document was found in the possession of the accused. No evidence was introduced to show that the accused was the author of the falsification. As a matter of fact, the trial court convicted the accused of falsification of official or public document mainly on the proposition that "the only person who could have made the erasures and the superimposition mentioned is the one who will be benefited by the alterations thus made" and that "he alone could have the motive for making such alterations". Was the conviction of the accused proper although the conviction was premised merely on the aforesaid ratiocination? '99 – Q13d

Falsification of Documents Erwin and Bea approached Mayor Abral and requested him to solemnize their marriage. Mayor Abral agreed. Erwin and Bea went to Mayor Abral's office on the day of the ceremony, but Mayor Abral was not there. When Erwin and Bea inquired where Mayor Abral was, his chief of staff Donato informed them that the Mayor was campaigning for the coming elections. Donato told them that the Mayor authorized him to solemnize the marriage and that Mayor Abral would just sign the documents when he arrived. Donato thereafter solemnized the marriage and later turned over the documents to Mayor Abral for his signature. In the marriage contract, it was stated that the marriage was solemnized by Mayor Abral. What crime(s) did Mayor Abral and Donato commit? Explain. (4%) ’15-Q16

YES, the conviction is proper because there is a presumption in law that the possessor and user of a falsified document is the one who falsified the same. The accused was a bookkeeper in a department store. He purchased on credit several items in the store and signed chits for them. In order to avoid paying for the gods, he did not record his personal account with store the items he purchased and tore up the chits he had signed. What crime, if any, did he commit? ’75 – Q15

Answer: Donato committed the crime of usurpation of function under Article 177 of the Revised Penal Code because he performed the act of solemnizing marriage, which pertained to the mayor, a person in authority, without being lawfully entitled to do so. The crime of illegal marriage is not committed, because the element that “the offender is authorized to solemnize marriage” is lacking (Ronulo v. People, G.R. No. 182438, July 2, 2014.)

Falsification of a private document by omission. It is the duty of the accused as bookkeeper to record in his personal account with the store the items he purchased. By tearing the chits which he signed for the purchases, damage is present (People v. Dizon, 47 Phil. 350.)

Mayor Abral is liable for falsification of public document by a public officer under Article 171. Making an untruthful statement by stating in a marriage contract, a public document, that the marriage was solemnized him, is an act of falsification. The crime of illegal marriage is not committed because element that “the offender has performed an illegal marriage ceremony” is lacking (Ronulo v. People G.R. No. 182438, July 2, 2014).

Falsification of Certificates What is the criminal liability, if any, of a physician who issues a false medical certificate in connection with the practice of his profession? ’12 - Q59 a) The physician is criminally liable for falsification of medical certificate. b) The physician is criminally liable if the false medical certificate is used in court. c) The physician incurs no criminal liability if the false medical certificate is not submitted to the court. d) The physician incurs no criminal liability if the false medical certificate does not cause prejudice or damage. SUGGESTED ANSWER: a) The physician is criminally liable for falsification of medical certificate. The crime of falsification of medical certificate is committed by any physician who, in connection, with the practice of his profession, shall issue a false certificate (Article 174). What is criminal under Article 174 is the issuance of false medical certificate. Submitting the false medical certificate to the court or causing prejudice or damage is not an element of this crime.

Upon opening a letter containing 17 money orders, the mail carrier forged the signatures of the payees on the money orders and encashed them. What crime or crimes did the mail carrier commit? ’08 – Q10 In People v. Villanueva, the Supreme Court held that the mail carrier is guilty of malversation and falsification. In U.S. v. Gorospe, the Supreme Court ruled that the crime is infidelity in the custody of documents. He can be charged with qualified theft since the property stolen is mail matter (Marcelo v. Sandiganbayan.) He may also be charged with forgery under Article 169(2), RPC because there was a material alteration on a genuine document (Luis B. Reyes, The Revised Penal Code, Volume II, p. 198, 16th Ed., [2006] citing U.S. v. Solito, 36 Phil. 785.) He may be charged with falsification under Article 171(1) and (2), RPC, because he counterfeited the signatures to make it appear that the payees signed the money order and received payment.

The baptism of A was solemnized by B, an ecclesiastical minister, in the absence of C, one of the godparents. Upon request of the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers mother of A, B caused the inclusion of the name of C in the baptismal certificate of A as one of the godparents and allowed a proxy for C during the baptismal ceremony. What is the criminal liability, if any, of the ecclesiastical minister? ’12 - Q68 a) The ecclesiastical minister is criminally liable for falsification of baptismal certificate by causing it to appear that C participated in the baptismal ceremony when he did not in fact so participate. b) The ecclesiastical minister is not criminally liable because the insertion of the name of C in the baptismal certificate will not affect the civil status of A. c) The ecclesiastical minister is not criminally liable because he is not a public officer, employee or notary. d) The ecclesiastical minister is not criminally liable because he did not take advantage of his official position nor cause damage to a third party. SUGGESTED ANSWER: b) The ecclesiastical minister is not criminally liable because the insertion of the name of C in the baptismal certificate will not affect the civil status of A. The ecclesiastical minister is not criminally liable because the insertion of the name of “C” in the baptismal certificate will not affect the civil status of “A”. Moreover, falsification of document by an ecclesiastical minister is punishable under Article 171 of the Revised Penal Code. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons (Reyes). Before, the parochial registries of baptisms were considered as official books and registers, and the certificates taken from these books were considered as public documents (US vs. Orosa, G.R. No. 2916, December 29, 2009). Thus, falsification of parochial document, which is considered public document, was consecutive of the crime of falsification affects the civil status of a person (See: The Revised Penal Code by Vicente Francisco). Now, parochial documents are now considered private writings (US vs. Evangelista, 29 Phil 215), the falsification of which will not affect the civic status of a person.

Perjury AA knowingly and willfully induced BB to swear falsely. BB testified as told in a formal hearing of an administrative case under circumstances rendering him guilty of perjury. Is AA criminally liable? ’12 - Q71 a) AA is not criminally liable because his act constitutes subornation of perjury which is not expressly penalized in the Revised Penal Code. b) AA is not criminally liable because he was not the one who gave false testimony in the administrative case. c) AA is not criminally liable because the witness suborned testified in an administrative case only. d) AA is criminally liable for perjury as principal by inducement with BB as the principal by direct participation. SUGGESTED ANSWER: d) AA is criminally liable for perjury as principal by inducement with BB as the principal by direct participation. Under Act No. 1697, any person who causes or procures another person to commit perjury is guilty of subornation of perjury. The Revised Penal Code, which has repealed Act. No. 1697, does not expressly penalize subordination of perjury. However, a suborner, who causes or procures another person to commit perjury, is guilty as principal by inducement. In People vs. Pudol, G.R. No. 45618, October 18, 1938 – the fact that subordination of perjury is not expressly penalized in the Revised Penal Code does not mean that the direct induction of a person by another to commit perjury has ceased to be a crime, because said crime is fully within the scope of the defined in Article 17 (2), of the said Code. Al Chua, a Chinese national, filed a petition under oath for naturalization, with the RTC of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al withdrew his petition for naturalization. What crime or crimes, if any, did Al commit? ’05 – Q14

False Testimony Paolo was charged with homicide before the RTC of Manila. Andrew, a prosecution witness, testified that he saw Paolo shoot Abby during their heated argument. While the case is still pending, the City Hall of Manila burned down and the entire records of the case were destroyed. Later, the records were reconstituted. Andrew was again called to the witness stand. This time he testified that his first testimony was false and the truth was he was abroad when the crime took place. The judge immediately ordered the prosecution of Andrew for giving a false testimony favorable to the defendant in a criminal case. '94 – Q13 1. Will the case against Andrew prosper? '94 – Q13-1

Al Chua committed: (1) Perjury (Article 183, RPC); and (2) Concubinage (Article 334, RPC). The crime of Perjury is committed by Al Chua when he stated under oath that he was living with Leni Chua in Sampaloc when in fact he was living with his mistress, and Leni Chua was already living in Cebu at the time of the filing of the petition. It is a false allegation under oath, on a material matter required by law in naturalization cases. The withdrawal of the petition did not have the effect of negating the crime committed. At the time when the petition was filed, Al Chua was already living with his mistress Babes Toh in the conjugal dwelling in Manila, thus committing concubinage.

YES. For one to be criminally liable under Article 181, RPC, it is not necessary that the first criminal case where Andrew testified is terminated first. It is not even required of the prosecution to prove which of the two statements of the witness is false and to prove the statement to be false by evidence other than the contradictory statements (People v. Arazola, CAR, 2nd Series, p. 808.) Paolo was acquitted. The decision became final on January 10, 1987. On June 18, 1994 a case of giving false testimony was filed against Andrew. As his lawyer, what legal step will you take? '94 – Q13-2

A, a government employee, was administratively charged with immorality for having an affair with B, a co-employee in the same office who believed him to be single. To exculpate himself, A testified that he was single and was willing to marry B, He induced C to testify and C did testify that B was single. The truth, however, was that A had earlier married D, now a neighbor of C. Is A guilty of perjury? Are A and C guilty of subordination of perjury? '97 – Q14

As lawyer of Andrew, I will file a motion to quash the Information on the ground of prescription. The crime of false testimony under Article 180 has prescribed because Paolo, the accused in the principal case, was acquitted on January 10, 1987 and therefore the penalty prescribed for such crime is arresto mayor under Article 180, par. 4, RPC. Crimes punishable by arresto mayor prescribe in five (5) years (Article 90, par. 3, RPC). But the case against Andrew was filed only on June 18, 1994, whereas the principal criminal case was decided with finality on January 10, 1987 and, hence the prescriptive period of the crime commenced to run. From January 10, 1987 to June 18, 1994 is more than five (5) years.

NO. A is not guilty of perjury because the willful falsehood asserted by him is not material to the charge of immorality. Whether A is single or married, the charge of immorality against him as a government employee could proceed or prosper. In other words, A's civil status is not a defense to the charge of immorality, hence, not a material matter that could influence the charge. There is no crime of subornation of perjury. The crime is now treated as plain perjury with the one inducing another as the principal inducement, and the latter, as principal by direct participation (People v. Podol, 66 Phil. 365). Since in this case A cannot be held liable for perjury, the matter that he testified to being immaterial, he cannot therefore be held responsible as a principal by inducement when he

2.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers induced C to testify on his status. Consequently, C is not liable as principal by direct participation in perjury, having testified on matters not material to an administrative case.

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. ’17 – Q5 (a) Who is a public officer? (2%) SUGGESTED ANSWER (a) Under Article 203 of the Revised Penal Code, 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, or 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 (b) Discuss whether the crimes charged against Mr. Gulang are proper. Explain your answer. (3%) As a general rule, malversation and failure to render accounting can only be committed by an accountable public officer. However, Article 222 of the Revised Penal Code provides that the provisions on malversation and failure to render account shall apply to private individuals who, in any capacity whatever, have charge of any national, provincial or municipal funds, revenues or property. The charges, therefore, against Mr. Gulaog for malversation and failure to render accounting are proper although he is a private individual. As a general rule, a private individual can be held liable for violation of RA No. 3019 if he conspired with a public officer in committing this crime (Go "· The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007). However, there is no showing in this case that a public officer violated RA No. 3019 and Mr. Gulang conspired with that public officer in committing this crime. Hence, the charge against Mr. Gulang as a private individual without a co-accused, who is a public officer, is improper.

Crimes against Public Morals Grave Scandal Pia, a bold actress living on top floor of a plush condominium in Makati City sunbathed naked at its penthouse every Sunday morning. She was unaware that the business executives holding office at the adjoining tall buildings reported to office every Sunday morning and, with the use of powerful binoculars, kept on gazing at her while she sunbathed. Eventually, her sunbathing became the talk of the town. '96 – Q15 1. What crime, if any, did Pia commit? '96 – Q15-1 Pia did not commit a crime, The felony closest to making Pia criminally liable is Grave Scandal, but then such act is not to be considered as highly scandalous and offensive against decency and good customs. In the first place, it was not done in a public place and within public knowledge or view. As a matter of fact it was discovered by the executives accidentally and they have to use binoculars to have public and full view of Pia sunbathing in the nude. 2.

What crime, if any, did the business executives commit? '96 – Q15-2

The business executives did not commit any crime. Their acts could not be acts of lasciviousness (as there was no overt lustful act), or slander, as the eventual talk of the town, resulting from her sunbathing, is not directly imputed to the business executives, and besides such topic is not intended to defame or put Pia to ridicule.

Who are public officers? ’99 – Q7a Public officers are persons, who by direct provision of the law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of the Philippines, of performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class (Article 203, RPC.)

Immoral Doctrines and Obscene Publications Juan and Petra are officemates. Later, intimacy developed between them. One day, Juan sent Petra a booklet contained in a pay envelope which was securely sealed. The booklet is unquestionably indecent and highly offensive to morals. Juan was thereafter charged under par. 3 of Article 201 of the RPC, as amended by P.D. No. 969, which provides that the penalty of prision mayor or a fine from P6,000 to P12,000, or both such imprisonment and fine shall be imposed upon those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. Is Juan guilty of the crime charged? ’93 – Q8

Direct Bribery Malo, a clerk of court of a trial court, promised the accused in a drug case pending before the court, that he would convince the judge to acquit him for a consideration of P5 million. The accused agreed and delivered the money, through his lawyer, to the clerk of court. ‘14-Q14 The judge, not knowing of the deal, proceeded to rule on the evidence and convicted the accused. (4%) (A) Malowas charged with violation of Section 3(b), Republic Act (R.A.) No. 3019, which prohibits a public officer from directly or indirectly requesting or receiving any gift, present, share percentage or benefit wherein the public officer, in his official capacity, has to intervene under the law. He was later charged also with indirect bribery under the Revised Penal Code. Malo claims he can no longer be charged under the Revised Penal Code for the same act under R.A. 3019. Is he correct? No. One may be charged with violatio of RA No. 3019 in addition to a felony under the Revised Penal Code for the same delictual act, either concurrently or subsequent to being charged with a felony under the Revised Penal Code. This is very clear from Section 3 of RA 3019. Also, RA 3019 is a special law, the elements of the crime is not the same as those punished under the Revised Penal Code. (B) Malowas charged with estafa under Article 315 because he misrepresented that he had influence, when he actually had none. Is the charge correct? Yes. Estafa is committed by any person who shall ask money from another for the alleged purpose of bribing a government employee when in truth the offender intended to convert the money to his own personal use and benefit (Article 315 (2)(c) of the Revisd Penal Code).

NO, Juan is not guilty of the crime charged because the law (Article 201, RPC) covers only the protection of public morals and not only the moral of an individual. Crimes Committed by Public Officers 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.

A public officer who immediately returns the bribe money handed over to him commits: ’11 – Q50 (A) no crime.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (B) attempted bribery. (C) consummated bribery. (D) frustrated bribery.

Estrada v. Luis Ablan. The judgment being in favor of Estrada, Rivas went to her lawyer's office where he was given the necessary amounts constituting the sheriffs fees and expenses for execution in the total amount of P550, aside from P2,000 in consideration of prompt enforcement of the writ from Estrada and her lawyer. The writ was successfully enforced. ’01 – Q10 1. What crime, if any, did the sheriff commit? ’01 – Q10-1

Direct bribery is a crime involving moral turpitude. From which of the following elements of direct bribery can moral turpitude be inferred? ’11 – Q51 (A) The offender receives a gift by himself or through another. (B) The offender is a public officer. (C) The offender takes a gift with a view to committing a crime in exchange. (D) The act which the offender agrees to perform or which he executes is connected with his official duties.

The sheriff committed the crime of Direct Bribery under the second paragraph of Article 210, RPC, since the P2,000 was received by him “in consideration” of the prompt enforcement of the writ of execution which is an official duty of the sheriff to do. Alternative Answer:

During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500,000 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes: 1. Direct Bribery; 2. Indirect Bribery; 3. Section 3(e) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act); 4. Obstruction of Justice under P.D. No. 1829. '05 – Q10

On the premise that even without the P2,000.00, Sheriff Ben Rivas had to carry out the writ of execution and not that he would be implementing the writ only because of the P2,000.00, the receipt of the amount by said sheriff may be regarded as a gift received by reason of his office and not as a “consideration” for the performance of an official duty; hence, only indirect Bribery would be committed by said sheriff. 2.

Was there any crime committed by Estrada and her lawyer and if so, what crime? ’01 – Q10-2

On the part of the plaintiff and her lawyer as giver of the bribemoney, the crime is Corruption of Public Officials under Article 212, RPC.

Patrick committed the crimes of direct bribery under Article 210 of the RPC, Violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019), and Obstruction of Justice under Section 1(b) of P.D. No. 1829. Direct bribery was committed by Patrick when, for consideration of P500,000.00, he committed a violation of P.D. No. 1829 by destroying the drugs which were evidence entrusted to him in him official capacity. Indirect bribery is not committed, because he received the P500,000.00 as a consideration for destroying evidence against the offender, which was under his official custody as a public officer. The money was not delivered to him simply as a gift or present by reason of his public office. Patrick also violated of Section 3(e) of R.A. No. 3019 causing undue injury to the government through evident bad faith, giving unwarranted benefit to the offender by destroying evidence of a crime. Obstruction of justice under Section 1(b) of P.D. No. 1829 is committed by destroying evidence intended to be used in official proceedings in a criminal case.

Indirect Bribery Arevalo, a judge who heard a civil case, received gifts from Maricel, the plaintiff therein, but rendered judgment in favor of Julie, the defendant therein. Who are criminally liable, and for what crime or crimes? ’93 – Q3 Arevalo, the Judge, is liable for indirect bribery (Article 210, RPC) and for violation of the Code of Conduct and Ethical Standards (Section 7(d) R.A. No. 6713 and P.D. No. 46.) Maricel is liable for corruption of public officers (Article, 212, RPC and P.D. No. 46.) Malversation Governor A was give the amount of P10 million by the Department of Agriculture for the purpose of buying seedlings to be distributed to the farmers. Supposedly intending to modernize the farming industry in his province, Governor A bought farm equipment through direct purchase from XY ■Enterprise, owned by his kumpare B, the alleged exclusive distributor of the said equipment. Upon inquiry, the Ombudsman discovered that B has a pending patent application or the said farm equipment. Moreover, the equipment purchased turned out to be overpriced.

Qualified Bribery What is the crime of qualified bribery? ’10 – Q2a Qualified bribery is a crime committed by a public officer who is entrusted with law enforcement and who, in consideration of any offer, promise, gift or offer, refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death (Art. 211-A, RPC.)

What crime or crimes, if any, were committed by Governor A? Explain. (5%) ’16 – Q5

May a judge be charged and prosecuted for qualified bribery? How about a public prosecutor? A police officer? ’10 – Q2b NO, a judge may not be charged of this felony because his official duty as a public officer is not law enforcement but the determination of cases already filed in court. On the other hand, a public prosecutor may be prosecuted for this crime in respect of the bribery committed, aside from dereliction of duty committed in violation of Article 208 of the Revised Penal Code, should he refrain from prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present. Meanwhile, a police officer who refrains from arresting such offender for the same consideration above-stated, may be prosecuted for this felony since he is a public officer entrusted with law enforcement.

Governor A committed the crimes of: (1) Technical Malversation; and (2) Violation of Sections 3 (e) and (g) of Republic Act No. 3019. Governor A committed the crime of illegal use of public funds or property punishable under Art. 220 of the Revised Penal Code. This offense is also known as technical malversation. The crime has three elements: a) that the offender is an accountable public officer; b) that he applies public funds or property under his administration to some public use; and c) that the public use for which such funds or property had been applied is different from the purpose for which they were originally appropriated by law or ordinance (Ysidoro v. People, G.R. No. 192330, 14 November 2012).

Deputy Sheriff Ben Rivas received from the RTC Clerk of Court a Writ of Execution in the case of Ejectment filed by Mrs. Maria

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Governor A can also be held liable for Violation of Section. 3 (e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, which has the following elements: (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; 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.

Answer: b) No. Mayor Maawain cannot revoke good faith when he approved the transfer of the boxes of food from the feeding program to the Shelter Assistance program. “Criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular purpose to another public purpose. The offensive is mala prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience. It is the commission of an act as defined by the law, and not the character or effect thereof that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.” (Ysidoro v. People, GR No. 192990, 14 November 2012).

The facts show that the first element is present The second element is likewise present because, “through manifest partiality” in favoring his kumpare, Governor A did not hold a public bidding and directly purchased the farm equipment from the latter. With respect to the third element, Governor A’s actions caused undue injury to to the government as well as the farmers who were deprived of the seedlings. His acts likewise gave his kumpare, a private party, the unwarranted benefit, advantage or preference, to the exclusion of other interested suppliers.

What crime is committed by a public officer who, having control of public funds or property by reason of the duties of his office and for which he is accountable, permits any other person through abandonment to take such public funds or property? ’12 Q70 a) The public officer commits malversation. b) The public officer commits technical malversation. c) The public officer commits the crime of failure of accountable or responsible officer to render accounts. d) The public officer commits the crime of failure to make delivery of public funds or property. SUGGESTED ANSWER: a) The public officer commits malversation. It is settled that a public officer is liable for malversation even if he does not use public property or funds under his custody for his personal benefit, if he allows another to take the funds, or through abandonment of negligence, allow suck taking. The felony may be committed, not only through the misappropriation or the conversion of public funds or property to one’s personal use, but also by knowingly allowing others to make use of or misappropriate the funds. The felony may thus be committed by dolo or by culpa. The crime is consummated and the appropriate penalty is imposed regardless of whether the mode of commission is with intent or due to negligence (People vs. Pantaleon, G. R. No. 158694-96, Mar. 13, 2009).

The act committed by the Governor is also in violation of Section 3 (g) of RA No. 3019 for entering a contract on behalf of the government which is manifestly and grossly disadvantageous to the same.

A typhoon destroyed the houses of many of the inhabitants of X Municipality. Thereafter, X Municipality operated a shelter assistance program whereby construction materials were provided to the calamity victims, and the beneficiaries provided the labor. The construction was partially done when the beneficiaries stopped helping with the construction for the reason that they needed to earn income to provide food for their families. When informed of the situation, Mayor Maawain approved the withdrawal of ten boxes of food from X Municipality's feeding program, which were given to the families of the beneficiaries of the shelter assistance program. The appropriations for the funds pertaining to the shelter assistance program and those for the feeding program were separate items on X Municipality's annual budget. ’15Q8

In malversation of public funds, the offender’s return of the amount malversed has the following effect: ’11 – Q19 (A) It is exculpatory. (B) It is inculpatory, an admission of the commission of the crime. (C) The imposable penalty will depend on what was not returned. (D) It is mitigating.

a) What crime did Mayor Maawain commit? Explain. (2.5%) ’15Q8a Answer: Mayor Maawaiin committed the crime of Illegal use of public funds or property punishable under Article 220 of the RPC. This offense is also known as Technical Malversation. The crime has three (3) elements: 1. That the offender is an accountable public officer, 2. That he applies public funds or property under his Administration to some public use; and c) that the public use for which such funds or property were applied is different from the purpose which they were originally appropriated by law or ordinance. The funds for the feeding program are not specifically appropriated for the beneficiaries of the shelter assistance program in X Municipality’s annual budget. Mayor Maawain ought to use the boxes of food earmarked particularly for the feeding program, which would cater only to the malnourished among his constituents who needed the resource for proper nourishment.

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the distribution of public funds allocated for their local development programs for 2008. Records show that the amount of P2-millon was purportedly used as financial assistance for a rice production project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money. Roger and Jessie are charged with malversation through falsification and violation of Section 3(e) of R.A. No. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. ’09 – Q16 The charge of malversation through falsification is not correct because the falsifications of several documents were not necessary to obtain the money that was malversed. The falsifications were committed to cover up or hide the malversation and therefore, should be separately treated from malversation. The given facts state that Roger and Jessie falsified disbursement vouchers and supporting documents “in order to make it appear” that qualified recipients received the money. Article 48, RPC on complex crimes is not applicable. They should be charged of violation of Section 3(e) of R.A. No. 3019 for the breach of public trust and undue injury caused to the Government. The violation is a crime malum prohibitum.

b) May Mayor Maawain invoke the defense of good faith and that he had no evil intent when he approved the transfer of the boxes of food from the feeding program to the shelter assistance program? Explain. (2.5%) ’15-Q8b

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy the judgment against him in favor of ABC Corp., a GOCC with an original charter. However, the representative of the winning corporation failed to attend the auction sale. Gonzalo, the winning bidder, purchased the property for P100,000 which he paid to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo lent the money to Myrna, his officemate, who promised to repay the amount within 2 months, with interest thereon. However, Myrna reneged on her promise. Despite demands of ABC, Eliseo failed to remit the said amount. ’08 – Q14 1. What crime or crimes, if any, did Eliseo commit? ’08 – Q14-1

cerned, with or without the conformity of the public prosecutor (Robles v. Layosa, 436 SCRA 337 [2004].) Accused Juan Santos, a deputy sheriff in a RTC, levied on the personal properties of a defendant in a civil case before said court, pursuant to a writ of execution duly issued by the court. Among the properties levied upon and deposited inside the "evidence room" of the Clerk of Court for Multiple RTC Salas were a refrigerator, a stock of cassette tapes, a dining table set of chairs and several lampshades. Upon the defendant's paying off the judgment creditor, he tried to claim his properties but found out that several items were missing, such as the cassette tapes, chairs and lampshades. After due and diligent sleuthing by the police detectives assigned to the case, these missing items were found in the house of accused Santos, who reasoned out that he only borrowed them temporarily. If you were the fiscal /prosecutor, what would be the nature of the information to be filed against the accused? '01 – Q4

Eliseo committed Malversation for allowing Myrna to misappropriate the money for which he, as Sheriff, is accountable (Article 217, RPC.) In this case, the act of Eliseo of lending the amount to his officemate is tantamount to permitting any other person to take the public funds, considering that the P100,000 involved is public funds, it should be turned-over to the Office of the Clerk of Court. 2.

If I were the fiscal/prosecutor, I would file an information for Malversation against Juan Santos for the cassette tapes, chain and lampshades which he, as deputy sheriff, levied upon and thus under his accountability as a public officer. Said properties being under levy, are in custodia legis and thus impressed with the character of public property, misappropriation of which constitutes the crime of malversation although said properties belonged to a private individual (Article 222, RPC). Juan Santos misappropriated such properties when, in breach of trust, he applied them to his own private use and benefit. His allegation that he only borrowed such properties is a lame excuse, devoid of merit as there is no one from whom he borrowed the same. The fact that it was only “after due and diligent sleuthing by the police detectives assigned to the case”, that the missing items were found in the house of Santos, negates his pretension.

Would your answer to the 1st question be the same if ABC was a private corporation? ’08 – Q14-2

The answer would be the same since even if ABC is a private corporation, Eliseo is still accountable for it, and the same should be delivered to the Court. In 1982, the PNB, then a government banking institution, hired Henry dela Renta, a CPA, as Regional Bank Auditor. In 1992, he resigned and was employed by the PDIC, another governmentowned and controlled corporation. In 1995, after the PNB management unearthed many irregularities and violations of the bank's rules and regulations, dela Renta was found to have manipulated certain accounts involving trust funds and time deposits of depositors. After investigation, he was charged with malversation of public funds before the Sandiganbayan. He filed a motion to dismiss contending he was no longer an employee of the PNB but of the PDIC. '06 – Q6 1. Is dela Renta's contention tenable? '06 – Q6-1

Alternative Answer: An information for Theft may be filed, considering that the sheriff had already deposited the properties levied upon in the “evidence room” of the Clerk of Court and may have already been relieved of his accountability therefor. If Juan Santos was no longer the public officer who should be accountable for the properties levied upon and found in his house, his taking of such properties would no longer constitute Malversation but Theft, as there was taking with intent to gain, of personal property of another without the consent of the latter.

No, de la Renta’s contention is not tenable for three reasons: a. His contention that he is no longer an employee of PNB but of PDIC has no merit since both PNB and PDIC are government institutions and the funds thereof belong to the same Government who suffers from the malversation (Section 4, P.D. No. 1606, as amended); b. Resignation or separation from office is not a ground for extinguishing criminal liability under Article 89 of the Revised Penal Code, for any crime committed while the offender was connected with the office; and c. The crime of malversation was discovered only in 1995 and so, the prescriptive period of the crime only commenced to run from then. Obviously, the amount misappropriated exceeds P200.00 and so the prescribed penalty is within range of prision mayor already. Crimes punishable by prision mayor prescribe in 15 years. From 1995 to the present (2006) is only around 11 years. Hence, the crime can still be prosecuted. 2.

Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In 1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging that they constitute "Ill-gotten wealth" of the Marcos family. Upon their application, Reyes and Santos were appointed as fiscal agents of the sequestered firm and they were given custody and possession of the sequestered building and its contents, including various vehicles used in the firm's operations. After a few months, an inventory was conducted and it was discovered that two (2) delivery vans were missing. After demand was made upon them, Reyes and Santos failed to give any satisfactory explanation why the vans were missing or to turn them over to the PCGG; hence, they were charged with Malversation of Public Property. During the trial, the two accused claimed that they are not public accountable officers and, if any crime was committed, it should only be Estafa under Art. 315, par. 1(b) of the RPC. What is the proper offense committed? '01 – Q5

After his arraignment, the prosecution filed a motion for his suspension pendente lite, to which he filed an opposition claiming that he can no longer be suspended as he is no longer an employee of the PNB but that of the PDIC. Explain whether he may or may not be suspended. '06 – Q6-2

The proper offense committed was Malversation of Public Property, not estafa, considering that Reyes and Santos, upon their application, were constituted as “fiscal agents” of the sequestered firm and were “given custody and possession” of the sequestered properties, including the delivery vans which later they could not account for. They were thus made the depositary and administrator of properties deposited by public authority and hence, by the duties of their office/position they are accountable for such properties. Such properties, having been sequestered by the Government through the PCGG, are in custodia legis and therefore impressed with the character of public proper-

The accused may be validly suspended from office in PDIC because PDIC is a government-owned and controlled corporation; hence, a public office. When the Information charges the accused with acts of fraud involving Government funds, the suspension of the accused pendent lite assumes a mandatory character and the court may order the suspension of the accused regardless of whether or not the prosecution files a motion for the preventive suspension of the accused, or the motion is filed by the counsel of the government agency con-

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers ty, even though the properties belong to a private individual (Article 222, RPC). The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is prima facie evidence that they had put the same to their personal use.

173). From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that “The absence of such law or ordinance was, in fact, established.” So, procedurally and substantially, the Sandiganbayan's decision suffers from serious infirmity.

What constitutes the crime of malversation of public funds or property? '99 – Q11a

Conniving with or Consenting Evasion During a town fiesta. A, the chief of police, permitted B, a detention prisoner and his compadre, to leave the municipal jail and entertain visitors in his house from 10 AM to 8 PM. B returned to the municipal jail at 8:30 PM. Was there any crime committed by A? '97 – Q11

Malversation of public funds or property is committed by any public officer who, by reason of the duties of his office, is accountable for public funds or property, 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 (Article 217, RPC.)

YES, A committed the crime of infidelity in the custody of a prisoner. Since B is a detention prisoner. As Chief of Police, A has custody over B. Even if B returned to the municipal Jail at 8:30 P.M. A, as custodian of the prisoner, has maliciously failed to perform the duties of his office, and when he permits said prisoner to obtain a relaxation of his imprisonment, he consents to the prisoner escaping the punishment of being deprived of his liberty which can be considered real and actual evasion of service under Article 223 of the RPC (People v. Bandino, 29 Phil. 459).

How is malversation distinguished from estafa? ’99 – Q11b Malversation differs from estafa in that malversation is committed by an accountable public officer involving public funds or property under his custody and accountability; while estafa is committed by a nonaccountable public officer or private individual involving funds or property for which he is not accountable to the government.

Anticipation of Duties of a Public Office A Municipal Treasurer, accountable for public funds or property, encashed with public funds private checks drawn in favor of his wife. The checks bounced, the drawer not having enough cash in the drawee bank. The Municipal Treasurer, in encashing private checks from public funds, violated regulations of his office. Notwithstanding restitution of the amount of the checks, can the Municipal Treasurer nevertheless be criminally liable? What crime did he commit? '99 – Q11c

What crime is committed when a person assumes the performance of duties and powers of a public office or employment without first being sworn in? ’12 – Q26 a) anticipation of duties of a public office; b) usurpation of authority; c) prohibited transaction; d) unlawful appointment. SUGGESTED ANSWER: a) anticipation of duties of a public office; The crime of anticipation of duties of a public office is committed by any person who shall assume the performance of the duties and powers of any public office or employment without first being sworn in or having given the bond required by law Article 236 of the Revised Penal Code).

YES, notwithstanding the restitution of the amount of the check, the Municipal Treasurer will be criminally liable as restitution does not negate criminal liability although it may be considered as a mitigating circumstance similar or analogous to voluntary surrender (People v. Velasquez, 73 Phil 98 [1941]), He will be criminally liable for malversation. However, if the restitution was made immediately, under vehement protest against an imputation of malversation and without leaving the office, he may not be criminally liable.

Prolonging Performance of Duties and Powers [a] Define malfeasance, misfeasance and nonfeasance. (2.5%) ’16 – Q2(a)

Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer, from the DPWH, the amount of P100,000 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the P100,000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? '96 – Q5

“Malfeasance” is the doing of an act which a person ought not to do at all. “Misfeasance” is the improper doing of an act which a person may/ might lawfully do. “Nonfeasance” is the omission of an act which a person ought to do. {Black's Dictionary, 6th Edition, West Publishing 1990) [b] Differentiate wheel conspiracy and chain conspiracy. (2.5%) ’16 – Q2(b) There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conspiracy. A "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. A “chain conspiracy”, on the other hand, 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 {Estrada v. Sandiganbayan, G.R. No. 148965, 26 February 2002).

Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous, is legally tenable because she was charged for malversation of public funds under Article 217 of the RPC but was convicted for Illegal use of public funds which is defined and punished under Article 220 of said Code. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information (Parungao v. Sandiganbayan, 197 SCRA

AA was appointed for a two-year term to serve the unexpired portion of a resigned public official. Despite being disqualified after the lapse of the two-year term, PA continued to exercise the du-

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers ties and powers of the public office to which appointed. What is the criminal liability of AA? ’12 – Q10 a) AA is criminally liable for malfeasance in office. b) AA is criminally liable for prolonging performance of duties and powers. c) AA is criminally liable for disobeying request for disqualification. d) AA incurs no criminal liability because there is no indication that he caused prejudice to anyone. SUGGESTED ANSWER: b) AA is criminally liable for prolonging performance of duties and powers. The crime of prolonging performance of duties and powers is committed by any public officer who shall continue to exercise the duties and powers of his office, employment or commission, beyond the period provided by law, regulations or special provision applicable to the case (Article 237 of the Revised Penal Code).

other for homicide. Do you agree with the recommendation? Explain your answer. (3%) SUGGESTED ANSWER I do not agree with the recommendation for the filing or attempted rape. Intent to have sexual Intercourse is an essential element of attempted rape. In other words, intent to lie with the victim must be ~loser. However, this intent is not established for failure to show that Aliswan had done acts to have sex with Amethyst (Cruz v.· People, G.R. No. 166441, October 08,2014, Bersamin); or that Aliswan had actually commenced to force his penis into the victim's sexual organ (People v.· Banzuela, G.R. No. 202060, December 11, 2013). Moreover, he spontaneously desisted from committing further lascivious acts after undressing Amethyst which is a defense in attempted rape. Undressing the victim with lewd design merely constitutes acts of lasciviousness (People v. Sanico, G.R. No. 208469, August 13, 2014). (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%) SUGGESTED ANSWER (b) Since Aliswao 's age is above 15 but below 18, being the brother of 16 year old Aliswan, the exempting circumstance of minority shall be appreciated in his favor unless it is shown that be acted with discernment. The cases are not dismissible since the prosecution mUst be first given opportunity to present evidence to establish that Aliswan acted with discernment. (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%) SUGGESTED ANSWER (c) In People v. Lasala (G.R. No. L-12141, January 30, 1962) which is similar to this case, the Supreme Court ruled that the crime committed is Less Serious Physical Injuries under Art. 265 of the Revised Penal Code as the medical attendance is for a period of ten (10) days only.

Abandonment of Office What crime is committed by a public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service in order to evade the discharge of the duties of preventing, prosecuting or punishing the crime of treason? ’12 – Q27 a) abandonment of office or position; b) qualified abandonment of office; c) misprision of treason; d) negligence in the prosecution of offense. SUGGESTED ANSWER: b) qualified abandonment of office; Abandonment of office or position is committed by any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service. The crime is qualified if the purpose of abandonment is to evade the discharge of the duties of preventing, prosecuting or punishing any of the crimes falling within Title One, and Chapter One of Title Three of Book Two of the Revised Penal Code such as treason (Article 238). Hence, the crime committed is qualified abandonment of office.

Considering, however, that the Less Serious Physical Injuries was inflicted with manifest intent to insult or offend the offended party or under circumstances adding ignominy to the offense, there shall be an added penalty of the fine not exceeding P500 pesos (Art. 265, par. 2)

Crimes Against Persons Rape 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 just transpired, unable to believe that the timid and quiet Alisto, Aliswan's identical twin brother, had committed rape.’17 -Q2 (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

(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%) SUGGESTED ANSWER (e) The defense raised by Amante is error in personae. This defense is not proper because of Article 4 of the Revised Penal Code, which provides that a person committing a felony is liable criminally although the wrongful act done be different from the unlawful intent. Thus, under this provision, Amante is liable for the wrongful act done, and that is child abuse against Alisto, although it differs from the wrongful act intended, and that is abusing Aliswan.

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 greenpainted house. Acting on the tip, the PNP station of the town formed a buy-bust team with PO2 Masahol being designated the poseur buyer.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 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)

SUGGESTED ANSWER (b) Yes. The two courts were correct in their rulings. The applicable provisions of law are Article 45 of the Revised Penal Code and Section 20 of RA No 9165. Under Article 45 of the Revised Penal Code, every penalty imposed for the commission of a felony shall include the forfeitureof the instruments or tools with which the crime was committed, unless they be the property of a third person not liable for the offense. The Supreme Court ruled that the return of the instrument or tools to its owner cannot be prevented unless said owner is charged with the offense for which said instrument or tool was used (PDEA v. Brodett, G.R. No. 1963990, September 28, 2011, citing People v. Jose, G.R. No. L-28232, February 6, 1971). The Supreme Court further held that the foregeiture of said instrument or tools, if warranted, would be part of the penalty prescribed (PDEA v. Brotte supra). Hence, the determination of whether it will be forfeited could be made only when judgment is rendered.

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%) ’17 – Q4

SUGGESTED ANSWER (a)

The charge of rape through forcible abduction is correct. The rule is settled that if the main objective of the accused is to rape the victim, the crime is rape even if he abducted for her forcefully. Forcible abduction is absorbed. The doctrine of absorption rather than Article 48 of RPC is applicable since forcible abduction is an indispensable is an indispensable means to commit rape (people v. Mejoranday, G.R. No. 102795m July 30, 1993; People v. Almanzor, G.R. No. 124916, July 11, 2002; People v. Sabadiab, G.R. No. 175924, March 14, 2012). If forcible abduction, however, is a necessary means to commit rape, this is a complex crime proper under Article 48 of RPC (people v. Tami, G.R. Nos. 101801-03, May 02, 1995).

In this case, the RTC Branch 8 already rendered a judgment of conviction against Solito. Solito was able to prove that the car belonged to his brother who was not charged with forcible abduction with rape; hence, it was correct for the RTC brnch 8 to order the release of the Toyota Innova to his brother who is not liable for the offense. On the other hand, Section 20 of R.A. No. 9165 satates in part, “(d) uring the pendency of the case in the Regional Trial Court, no property, or income derived (from the unlawful sale of any dangerous drug), 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 Supreme Court ruled that it is premature to release the car used in the sale of dangerous drugs while the trial is still ongoing (PDEA v. Brodett supra). The Supreme Court explained that the status of the car for the duration of the trial of the RTC as being in custodia legis primarily intended to preserve it as evidence to ensure its availability as such (PDEA v. Bodett, supra).

Where the victim was abducted with lew design and brought to a house (People v. Magdaraog, G.R. No. L-40988, April 15, 1988; People v. Buhos, G.R. No. L-40995, June 25, 1980; En Banc; People v. Velasquez, G.R. No. 137383-84, November 23, 2000) in a desolated place e.g. uninhabited grass upland (people v. Caraang, G.R. No. 1247027, December 11, 2003) orforest People v. De Lara G.R. No. 124703, June 27, 2000) where she was raped, forcible abduction should be treated as a necessary means to commit rape, and thus, the crime committed is a complex crime of rape through forcible abduction under Art. 48 of the Revised Penal Code.

The RTC Branch 29, thus was correct in denying Solito’s motion to release the Toyota Innova considering that the trial for illegal sale of drugs is still ongoing.

If the slightest penetration of the female genitalia consummates rape by carnal knowledge, how does the accused commit attempted rape by carnal knowledge? (2%) ’17 -Q6

The charge of sale dangerous drugs is improper, since this crime is consummated only upon the delivery of the dangerous drugs to the poseur buyer for a consideration. Since in this case Solito has not yet delivered the marijuana to PO2 Masahol when the latter apprehended the form, the crime committed is not sale of dangerous drugs but attempted sale of dangerous drugs. In People v. Figuroa (G.R. no. 186141, April 11, 2012), where the sale was aborted when the police officers immediately placed accused under arrest, the crime committed is attempted sale.

(b)

SUGGESTED ANSWER To be held liable for attempted rape by carnal knowledge, the penis of the accused must not touch the labia of the pudendum of the victim but his acts must be committed with clear intention to have sexual intercourse. Intent to have sexual intercourse is present if it is shown that the erectile penis of the accused is in the position to penetrate (Cruz v. People, G.R. No. 166441, October 08, 2014) or the accused actually commenced to force his pen.is into the victim's sexual organ (People v. Banzuela, G.R. No. 202060, December II, 2013). If the offender touches the body of the victim through force, with lewd design but without clear intention. to have sexual intercourse, the crime committed is acts of lasciviousness (People v. Sanico, G.R. No. 208469, August 13, 2014).

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 slightest penetration of the female genitalia consummates rape by carnal knowledge, how does the accused commit attempted rape by carnal knowledge? (2%)

SUGGESTED ANSWER

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers To be held liable for attempted rape by carnal knowledge, the penis of the accused must not touch the labia of the pudendum of the victim but his acts must be committed with clear intention to have sexual intercourse. Intent to have sexual intercourse is present if it is shown that the erectile penis of the accused is in the position to penetrate (Cruz v. People, G.R. No. 166441, October 08, 2014) or the accused actually commenced to force his pen.is into the victim's sexual organ (People v. Banzuela, G.R. No. 202060, December II, 2013). If the offender touches the body of the victim through force, with lewd design but without clear intention. to have sexual intercourse, the crime committed is acts of lasciviousness (People v. Sanico, G.R. No. 208469, August 13, 2014).

the witness stand. The information also alleged that the accused was the victim's uncle, a fact proved by the prosecution. On automatic review before the Supreme Court, accused-appellant contends that capital punishment could not be imposed on him because of the inadequacy of the charges and the insufficiency of the evidence to prove all the elements of the heinous crime of rape beyond reasonable doubt. Is appellant's contention correct? '04 – Q6b YES, appellant's contention is correct insofar as the age of the victim is concerned. The age of the victim raped has not been proved beyond reasonable doubt to constitute the crime as qualified rape and deserving of the death penalty. The guidelines in appreciating age as a qualifying circumstance in rape cases have not been met, to wit: 1. The primary evidence of the age of the victim is her birth certificate; 2. In the absence of the birth certificate, age of the victim maybe proven by authentic document, such as baptismal certificate and school records; 3. If the aforesaid documents are shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible of the victim's mother or any member of the family, by consanguinity or affinity, who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient but only under the following circumstances: (a) If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; (b) If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; (c) If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age under the circumstances abovestated, complainant's sole testimony can suffice, provided that it is expressly and clearly admitted by the accused (People v. Pruna, 390 SCRA 577 [2002].)

Charlie was charged for the qualified rape of AAA. The Information alleged that AAA was 14 years old at the time the crime was committed and that Charlie was AAA's stepfather. The presentation of AAA's birth certificate during the trial duly established the following: (1) that AAA was indeed 14 years old at the time of the rape; and (2) that AAA's mother is BBB and her father was the late CCC. BBB and Charlie only became live-in partners after CCC's death. The RTC found Charlie guilty of qualified rape. On appeal, the Court of Appeals convicted Charlie of simple rape. Charlie appealed before the Supreme Court. How will you rule and why? (3%) ’15-Q22

ANSWER: The CA ruling is correct. The crime committed by Charlie is simple rape. To be held liable for qualified rape, a qualifying circumstance should be alleged in the information and proven by evidence beyond reasonable doubt. Although minority and relationship as a qualifying circumstance are alleged in the information, what is proven by the evidence is the qualifying mother of victim. The concept of steprelationship is different from that of common-law relationship because the former the mother of the victim and the offender are legally married while in the latter they are not. To appreciate this qualifying circumstance of minority and common-law relationships will offend the constitutional right of the accused to be informed of the nature of the crime charger against him.

What other acts are considered rape under the Anti-Rape Law of 1997, amending the RPC? '02 – Q8a The other acts considered rape under the Anti-Rape Law of 1997

Sexy boarded a taxi on her way home from a party. Because she was already tipsy, she fell asleep. Pogi, the taxi driver, decided to take advantage of the situation and drove Sexy to a deserted place where he raped her for a period of two (2) weeks. What crime did Pogi commit? ‘14-Q12 A: The crime committed by Pogi is kidnapping and serious illegal detention with rape. Since Sexy was raped for two weeks, there was a clear deprivatio of liberty, which constitutes the crime of kidnapping with serious illegal detention. The crime is comimitted when one kidnaps or detains another, or in any other manner deprives her of his liberty and the kidnapping or detention has lasted more than three days or the victim is a female. Since as a consequence of the detention, the victim is raped, the crime committed is special complex crime of kidnapping with rape. No matter how many rapes had been committed in the special complex crime of kidnapping with rape, the resultant crime is only kidnapping with rape. This is because these composite acts are regarded as a single indivisible offense as in fact RA No 7659 punishes these acts with only single penalty (People v. Mirandilla, Jr. GR No. 186417, July 27, 2011).

are: 1. 2. 3.

Having carnal knowledge of a woman by a man by means of fraudulent machination or grave abuse of authority; Having carnal knowledge of a demented woman by a man even if none of the circumstances required in rape be present; and Committing an act of sexual assault by inserting a person's penis into the victim's mouth or anal orifice, or by inserting any instrument or object, into the genital or anal orifice of another person.

The Anti-Rape Law of 1997 reclassified rape from a crime against honor, a private offense, to that of a crime against persons. Will the subsequent marriage of the offender and the offended party extinguish the criminal action or the penalty imposed? '02 – Q8b YES. By express provision of Article 266-C of the RPC, as amended, the subsequent valid marriage between the offender and offended party shall extinguish the criminal action or the penalty imposed, although rape has been reclassified from a crime against chastity, to that of a crime against persons.

A criminal action for rape is extinguished when the offender is forgiven by: ’11 – Q70 (A) the offender’s wife who herself is the rape victim. (B) his wife for having raped another woman. (C) the rape victim’s husband. (D) the rape victim herself.

A, a male, takes B, another male, to a motel and there, through threat and intimidation, succeeds in inserting his penis into the anus of B. What, if any, is A’s criminal liability? '02 – Q9a A shall be criminally liable for rape by committing an act of sexual assault against B, by inserting his penis into the anus of the latter. Even a man may be a victim of rape by sexual assault under par. 2 of Article 266-A of the RPC, as amended, “when the offender's penis is inserted into his mouth or anal orifice.”

GV was convicted of raping TC, his niece, and he was sentenced to death. It was alleged in the information that the victim was a minor below 7 years old, and her mother testified that she was only 6 years and 10 months old, which her aunt corroborated on

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (B) Pretty, after the ordeal, decided to take her own life by hanging herself one hour after the rape. Would Guapo and Pogi be liable for Pretty’s death? Explain.

Flordeluna boarded a taxi on her way home to QC which was driven by Roger, Flordeluna noticed that Roger was always placing his car freshener in front of the car aircon ventilation but did not bother asking Roger why. Suddenly, Flordeluna felt dizzy and became unconscious. Instead of bringing her to Quezon City, Roger brought Flordeluna to his house in Cavite where she was detained for two (2) weeks. She was raped for the entire duration of her detention. May Roger be charged and convicted of the crime of rape with serious illegal detention? '00 – Q10

Guapo and Pogi cannot be held liable for the death of Pretty due to suicide committed by reason of the rapes. Suicide is an intervening cause that breaks the connection between the rapes and death. The death resulting from suicide cannot be considered as the direct, natural and logical consequence of the rapes committeed by Guapo and Pogi. In People v. Napudo (GR No. 168448), the victim committed suicide due to rape. However the accused was only charged with and convicted of rape.

NO, Roger may not be charged and convicted of the crime of rape with serious illegal detention. Roger may be charged and convicted of multiple rapes. Each rape is a distinct offense and should be punished separately. Evidently, his principal intention was to abuse Flordeluna; the detention was only incidental to the rape.

Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to her death and, before leaving the room, took her jewelry. ’09 – Q17 1. What crime or crimes, if any, did Wenceslao commit? ’09 – Q17-1

Alternative Answer: No, Roger may not be charged and convicted of the crime of rape with serious illegal detention, since the detention was incurred in raping the victim during the days she was held. At most, Roger may be prosecuted for forcible abduction for taking Flordeluna to Cavite against the latter's will and with lewd designs. The forcible abduction should be complexed with one of the multiple rapes committed, and the other rapes should be prosecuted and punished separately, in as many rapes were charged and proved.

Wenceslao committed the following crimes: (1) the special complex crime of rape with homicide; (2) theft; and (3) unlawful possession of picklocks and similar tools under Article 304, RPC. His act of having carnal knowledge of Loretta against her will and with the use of force and violence constituted rape, plus the killing of Loretta by reason of or on the occasion of the rape, gave rise to the special complex crime of rape with homicide. Since the taking of the jewelry was an afterthought, as it was done when he was about to leave the room and when Loretta was already dead, the same constitutes theft. His possession and use of the picklock “without lawful cause” is by itself punishable under Article 304, RPC.

The complainant, an eighteen-year old mental retardate with an intellectual capacity between the ages of nine and twelve years, when asked during the trial how she felt when she was raped by the accused, replied “Masarap, it gave me much pleasure.” With the claim of the accused that the complainant consented for a fee to the sexual intercourse, and with the foregoing answer of the complainant, would you convict the accused of rape if you were the judge trying the case? '96 – Q12

2. YES, I would convict the accused of rape. Since the victim is a mental retardate with an intellectual capacity of a child less than 12 years old, she is legally incapable of giving a valid consent to the sexual Intercourse. The sexual intercourse is tantamount to a statutory rape because the level of intelligence is that of a child less than twelve years of age. Where the victim of rape is a mental retardate, violence or Intimidation is not essential to constitute rape (People v. Trimor, G,R. 106541-42, 31 March 1995) As a matter of fact, R.A. No. 7659, the Heinous Crimes Law, amended Art. 335, RPC, by adding the phrase "or is demented."

Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of picklocks to enter the room of the victim. ’09 – Q17-2

Dwelling is aggravating because the crimes were committed in the privacy of Loretta’s room which in law is considered as her dwelling. It is well-settled that “dwelling” includes a room in a boarding house being occupied by the offended party where she enjoys privacy, peace of mind and sanctity of abode. Nocturnity or night time is also aggravating because although it was not purposely or especially sought after for by Wenceslao, night time was obviously taken advantaged of by him in committing the other crimes. Under the objective test, nocturnity is aggravating when taken advantaged of by the offender during the commission of the crime thus facilitating the same. The use of a picklock to enter the room of the victim is not an aggravating circumstance under Article 14 of the Code but punished as a crime by itself where the offender has no lawful cause for possessing it. The use of picklocks is equivalent to force upon things in robbery with force upon things.

Rape with Homicide Pretty was a campus beauty queen who, because of her looks and charms, attracted many suitors. Having decided that she would become a nun, Pretty turned down all her suitors. Guapo, one of her most persistent suitors, could not handle rejection and one night, decided to accost Pretty as she walked home. Together with Pogi, Guapo forced Pretty into his car and drove her to an abandoned warehouse where heand Pogi forced Pretty to dance for them. Later, the two took turns in raping her.After satisfying their lusts, Guapo and Pogi dropped her off at her house. ‘14-Q8

3.

Would your answer be to (1) be the same if, despite the serious stab wounds she sustained, Loretta survived? ’09 – Q17-3

(A) What crime or crimes did Guapo and Pogi commit? NO, the answer will be different. In that case, the crimes committed would be four (4) separate crimes of: (1) rape; (2) frustrated homicide or murder; (3) theft; and (4) unlawful possession of picklocks and similar tools under Article 304, RPC. The special complex crime of rape with homicide is constituted only when both the rape and the killing are consummated; when one or both of them are not consummated, they are to be charged and punished separately. In any event, the possession of the picklock “without lawful cause”, more so its use in an unlawful entry, is punished as a crime by itself.

The crimes committed by Guapo and Pogi are Forcible Abduction with rape. There is no doubt at all that the forcible abduction of Pretty as she walked home was a necessary if not indispensable means which enabled them to commit the successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that the second rape cannot be legally considered as still connected with the abduction—in other words, the second rape should be detached from, and considered independently of, that of forcible abduction and therefore, the former can no longer by complexed with the latter. (People v Jose, GR No. L-28232; People v. Garcia GR No. 141125)

Dang was a beauty queen in a university. Job, a rich classmate, was so enamored with her that he persistently wooed and pursued her. Dang, being in love with another man, rejected him. This

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers angered Job, Sometime in September 2003, while Dang and her sister Lyn were on their way home, Job and his minor friend Nonoy grabbed them and pushed them inside a white van. They brought them to an abandoned warehouse where they forced them to dance naked. Thereafter, they brought them to a hill in a nearby barangay where they took turns raping them. After satisfying their lust, Job ordered Nonoy to push Dang down a ravine, resulting in her death. Lyn ran away but Job and Nonoy chased her and pushed her inside the van. Then the duo drove away. Lyn was never seen again. 1. What crime or crimes were committed by Job and Nonoy? '06 – Q13-1

4.

NO. The corpus delicti or fact of commission of the crime is clear. Even the death of Lyn may be established from the acts of the culprits, without the need of the body of Lyn being presented. On July 1, 2004, Jet Matulis, a pedophile, gave P1,000 to Shirley, an orphan and a prostitute and bought her to a motel. He inserted a rusty and oversized vibrator into her vagina with such force that she bled profusely. Jet panicked and fled. Shirley was brought to the hospital and died a few days later because of shock caused by hemorrhage. ’05 – Q11 1. What crime or crimes did Jet commit? ’05 – Q11-1

Job and Nonoy each committed two (2) counts of the special complex crime of rape with homicide under Article 266-B for the rapes respectively committed on Dang and Lyn. Their felonious acts of grabbing and pushing the victims inside their van and later forcing them to dance naked may only be appreciated as part of the violence and lewd desires attending the rape, and are therefore absorbed by the rape. Although, there is no indication that the same culprits killed Lyn who was never seen again, it is reasonable to assume from what the culprits did to Dang, and from the acts of violence employed on Lyn, that they are answerable also for the presumed death of Lyn whom the culprits took with then by force and was never seen again. Hence, the rape committed against her is attended by homicide giving rise to the special complex crime of rape with homicide also. It would be different if Lyn was not subjected to physical violence (R.A. No. 7659.)

Jet Matulis should be liable only for the crime of homicide for the death of Shirley, assuming that she was not a minor (in the light of the following question) since the sexual assault was committed without any of the circumstances mentioned in Article 266-A(1) of the RPC as rape. It appears that the offender and the offended party went to the hotel for mutual sexual gratification. 2.

Job and Nonoy committed 1) kidnapping and serious illegal detention with homicide and rape for the subsequent death of Dang, and 2) kidnapping with rape against her sister, Lyn. The victims, who were kidnapped and detained, were subsequently raped and killed (as regards Dang) in the course of their detention. The composite crime is committed regardless of whether the subsequent crimes were purposely sought or merely an afterthought (People v. Larranaga, G.R. Nos. 138874-5, February, 2004).

Parricide After a heated argument over his philandering, Higino punched on the head his wife Aika, who was six and a half months pregnant. Because of the impact, Aika lost her balance, fell on the floor with her head hitting a hard object. Aika died and the child was expelled prematurely. After thirty-six hours, the child died. ’15-Q17

Another Alternative Answer: Job and Nonoy committed 2 counts of the complex crime of forcible abduction with rape (Article 342, RPC) and the separate offense of murder against Dang. The crime committed is abduction because there was lewd design when they took the victims away and subsequently raped them. The killing thereafter, constitutes the separate offense of murder qualified by treachery.

1.

a) What crime(s) did Higino commit? Explain. (2.5%) ’15Q17

ANSWER:With respect to the killing of the wife, parricide under Article 246 of Revised Penal Code is committed because of the qualifying circumstance of relationship. With respect to the killing of the child, he is not liable for unintentional abortion under Article 257 because the child, who was born alive, was already viable or capable of independent existence, his age being six months and a half months (U.S. v. Vedra, 12 Phil. 96; People v. Paycana, Jr. G.R. No. 179035, April 16, 2008; People v. Detablan, 40 O.G. No. 9, p. 30). Nor is he liable for infanticide because the child is not less than three (3) day old for the latter died after thirty-six hours from expulsion (Article 255 of RPC). The crime committed is another parricide because the victim is his child with his wife. Hence, relationship qualifies the killing. He shall incur criminal liability for two parricides although these crimes committed are different from his criminal intention of maltreating his wife (Article 4). This is a complex crime because the single act of punching the victim constitutes two grave felonies (Article 48).

What penalties should be imposed on them? '06 – Q13-2

Because of the obvious conspiracy, each of the culprits should be punished not only for the rape he committed but also for the rape committed by the other; hence, for as many counts of rape committed by him plus those committed by the other culprit against each of the victims. Although the penalty for the crime of rape with homicide was death at the time the accused committed them, and the law (R.A. No. 9346) prohibiting the imposition of the death penalty took effect only this year (2006), said new law should be given retroactive effect because it is favorable to the culprits who are not habitual delinquents and there being no provision of law to the contrary. Hence, reclusion perpetua for each count of rape with homicide. The accessory penalty under Article 40 of the RPC will not follow because Section 2 of R.A. No. 9346 does not so provide: it is the accessory penalty for reclusion perpetua that shall now adhere to the principal penalty. 3.

If Shirley was a minor when she died, would your answer be the same? ’05 – Q11-2

If Shirley was a minor when she died, the crimes of homicide and child abuse in violation of R.A. No. 7610 (Special Protection of Children against abuse, exploitation, discrimination and for other purposes), are committed by Jet Matulis, provided Shirley is not less than twelve (12) years old. If Shirley was less than 12 years old then, the crime committed by Matulis is Rape (through sexual assault) with Homicide, a special complex crime under Article 266-B of the RPC.

Alternative Answer:

2.

Is the non-recovery of Lyn's body material to the criminal liability of Job and Nonoy? '06 – Q13-4

b) Assuming that when the incident occurred, Aika was only six months pregnant, and when she died, the fetus inside her womb also died, will your answer be different? Explain. (2.5%) ’15-Q17

Will Nonoy's minority exculpate him? '06 – Q13-3

Nonoy’s minority will exculpate him under R.A. No. 9344, referred to as the “Juvenile Justice and Welfare Act of 2006”, if he was 15 years old or less; otherwise he will be criminally and civilly liable considering that he acted with discernment when he also raped the victims. At most, his minority will be appreciated as a privileged mitigating circumstance.

If the child died inside the womb of Aika, who was only six months, the crime committed is complex crime of parricide with unintentional abortion. Killing the unborn child as a result of the violence employed

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers against the mother without intent to abort is unintentional abortion. Since the child died inside the womb of the mother, u n i n t e ntional abortion is committed regardless of viability of the victim. Because the same violence that killed the mother also caused unintentional abortion, the crime committed is a complex crime (People v. Paycana, Jr. G.R. No. 179035, April 16, 2008; People v. R o b inos, G.R. No. 138453, May 29, 2002; People v. Villanueva, G.R. No. 95851, March 01, 1995; People v. Salufrania, G.R. No. L-50884, March 30, 1988).

ing his instant death. The driver was arrested and charged with Murder for the death of Mang Jose and Serious Physical Injuries through Reckless Imprudence with respect to the grandson. Are the charges correct? '01 – Q6 YES, the charges are correct. For deliberately running over Mang Jose's prostrate body after having bumped him and his grandson, the driver indeed committed Murder, qualified by treachery. Said driver's deliberate intent to kill Mang Jose was demonstrated by his running over the latter's body twice, by backing up the van and driving it forward, whereas the victim was helpless and not in a position to defend himself or to retaliate. As to the serious physical injuries sustained by Mang Jose's 10year old grandson, as a result of having been hit by the speeding vehicle of said driver, the same were the result of reckless imprudence which is punishable as a quasi-offense in Article 365 of the RPC. The charge of Reckless Imprudence Resulting to Serious Physical Injuries is correct. The penalty next higher in degree to what ordinarily should be imposed is called for, since the driver did not lend help on the spot, which help he could have given to the victims.

Procopio, a call center agent assigned at a graveyard shift, went home earlier than usual. He proceeded immediately to their bedroom to change his clothes. To his surprise, he found his wife Bionci in bed making love to another woman Magna. Enraged, Procopio grabbed a knife nearby and stabbed Bionci, who died. ’15-Q4 a) What crime did Procopio commit, and what circumstance attended the case? Explain. (3%) ’15-Q4a Answer: (a) The crime committed by Procopio is parricide qualified by the circumstance of relationship. Killing a spouse after having been surprised in the act of committing sexual intercourse with another woman is death under exceptional circumstance under Article 247 of the Revised Penal Cosde. However, in this case this is not death under exceptional circumstance because Bionci was having homosexual intercourse with another woman and not sexual intercourse with a man. “Homosexual intercourse” is not within the contemplation of the term “sexual intercourse” in Article 427. However, the crime of parricide is attended by the circumstance of passion arising from a lawful sentiment as a result of having caught his wife in the act of infidelity with another woman (People v. Belarmino, G.R. No. L-4429, April 18, 1952, En Banc).

Who may be guilty of the crime of parricide? ’99 – Q16a Any person who kills his father, mother, or child, whether legitimate or illegitimate, or his ascendants or descendants, or spouse, shall be guilty of parricide (Article 246, RPC.) What crime or crimes did A commit if A killed: 1. A woman with whom he lived without benefit of clergy. HOMICIDE or MURDER as the case may be, for the killing of his common-law wife who is not legally considered a “spouse”. 2.

b) Assuming that Procopio and Bionci were common-law spouses, will your answer be the same? Explain. (2%) ’15-Q4b

Their child who was only two days old.

INFANTICIDE for the killing of the child as said child is less than three (3) days old (Article 255, RPC.) However, the penalty corresponding to parricide shall be imposed since A is related to the child within the degree defined in the crime of parricide.

(b) The crime committed is Homicide if Procopio and Bionci were common law spouses. Parricide contemplates killing by spouse who are legally married.

3.

Their daughter

PARRICIDE for the killing of their daughter, whether legitimate or illegitimate, as long as she is not less than three (3) days old at the time of the killing.

The key element in a crime of parricide other than the fact of killing is the relationship of the offender to the victim. Which one of the following circumstances constitutes parricide? ’12 – Q28

4.

a) Offender killing the illegitimate daughter of his legitimate son. b) Offender killing his illegitimate grandson. c) Offender killing his common-law wife. d) Offender killing his illegitimate mother.

Their adopted son. '99 – Q16b

MURDER for the killing of their adopted son as the relationship between A and the said son must be by blood in order for parricide to arise. A, a young housewife, and B, her paramour, conspired to kill C. her husband, to whom she was lawfully married, A and B bought pancit and mixed it with poison. A gave the food with poison to C, but before C could eat it. D, her illegitimate father, and E, her legitimate son, arrived. C. D and E shared the food in the presence of A who merely watched them eating. C, D and E died because of having partaken of the poisoned food. What crime or crimes did A and B commit? '97 – Q12

SUGGESTED ANSWER: d) Offender killing his illegitimate mother. Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused (People vs. Tibon, G.R. No. 188320, June 29, 2010). Killing his granddaughter, grandson or wife shall only be considered as parricide of the relationship is legitimate. Hence, “A”, “B” or “C” is not the answer. On the other hand, killing his mother is parricide whether the relationship is legitimate or illegitimate.

A committed the crime of multiple parricide for the killing of C, her lawful husband, D, her illegitimate father, and E, her legitimate son. All these killings constitute parricide under Article 246 of the RPC because of her relationship with the victims. B committed the crime of murder as a co-conspirator of A in the killing of C because the killing was carried out by means of poison (Article 248, par. 3, RPC). But for feloniously causing the death of D and E, B committed two counts of homicide. The plan was only to kill C.

Mang Jose, a septuagenarian, was walking with his 10-year old grandson along Paseo de Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding CRV Honda van and were sent sprawling on the pavement a meter apart. The driver, a Chinese mestizo, stopped his car after hitting the two victims but then reversed his gears and ran over Mang Jose's prostrate body anew and third time by advancing his car forward. The grandson suffered broken legs only and survived but Mang Jose suffered multiple fractures and broken ribs, caus-

Murder A, an OFW, worked in Kuwait for several years as a chief accountant, religiously sending to his wife, B, 80% of all his earnings.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers After his stint abroad, he was shocked to know that B became the paramour of a married man, C, and that all the monies he sent to B were given by her to C. To avenge his honor, A hired X, Y and Z and told them to kidnap C and his wife, I, so that he can inflict injuries on C to make him suffer, and humiliate him in front of his wife. X, Y and Z were paid P20,000. Each and were promised a reward of P50, 000.00 each once the job is done. At midnight, A, with the fully armed X, Y and Z, forcibly opened the door and gained entrance to the house of C and D. C put up a struggle before he was subdued by A's group. They boarded C and D in a van and brought the two to a small hut in a farm outside Metro Manila. Both hands of C and D were tied. With the help of X, Y and Z, A raped D in front of C. X, Y and Z then took turns in raping D, and subjected C to torture until he was black and blue and bleeding profusely from several stab wounds. A and his group set the hut on fire before leaving, killing both C and D. X, Y and Z were paid their reward. Bothered by his conscience, A surrendered the next day to the police, admitting the crimes he committed. As the RTC judge, decide what crime or crimes were committed by A, X, Y and Z, and what mitigating and aggravating circumstances will be applied in imposing the penalty. Explain. (5%) ‘ 16 – Q20

der. 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. Charges d’affaires 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%) ’16 – Q8

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. 142396,11 February 2003).

A, X, Y and Z are liable for two counts of kidnapping with murder qualified by means of fire, since C and D were killed in the course of the detention. In a special complex crime of kidnapping with murder, it is immaterial that other crimes were committed such as multiple rapes and arson. Since multiple rapes and arson are committed by reason or on occasion of kidnapping, they shall be integrated into one and indivisible felony of kidnapping with murder {People v. Larranaga, 13887475, 31 January 2004). The mitigating circumstances of passion and voluntary surrender can be appreciated in favor of A. The aggravating circumstances of unlawful entry, by means of fire, and treachery can be appreciated against A, X, Y and Z.

Honesto and Wilma were married but had been living separately due to irreconcilable differences. Honesto later met Celia and fell in love with her. Thinking that he could marry Celia if Wilma were to die, Honesto decided to kill Wilma. He secretly followed Wilma for weeks to learn her daily routine. He decided to kill her at night on her way home. On the night he was to kill Wilma, Honesto wore dark clothes so that he would not be easily seen. He waited in the dark alley for Wilma to pass by. He saw someone whom he thought looked like Wilma and shot her with a revolver. The bullet passed through the person's head and grazed another passerby's arm. Some bystanders who heard the shot were able to stop Honesto.

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 for a 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 twentyfour 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%) ’16 – Q18

It turned out that Wilma did not report for work on that day, and the one who was shot in the head was Melba, who died. The passerby whose arm was grazed by the bullet required medical attendance for two days. a) What crime(s) did Honesto commit? Explain. (2.5%)

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, 30 March 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, 4 March 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 acco mplice 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 mur-

Answer: Honesto is liable for murder qualified by the circumstance of treachery for killing Melba due to error in personae or mistake of identity and slight physical injuries for the wound sustained by the passerby of the blow. Although his intention to commit parricide, he is liable for murder and slight physical injuries since they are the direct, natural and logical consequence of act committed with intent to kill his wife.

b) Will your answer be the same, assuming that the other passerby was hit in the left eye which caused his/her blindness? Explain. (2.5%) ’15-Q10

Answer: If the passerby was hit in the left eye causing blindness, the crime committed by Honesto is serious physical injuries. Unlike slight physical injuries, serious physical injuries can be made a component of a complex crime under Article 48 of the Revised Penal Code. Since a

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers single act of shooting the victim constitutes murder and serious physical injuries, they can be merged together to form a complex crime. Thus, my answer would be different since the crime would be Murder with Serious physical injuries.

On hearing a hospital ward patient on the next bed, shrieking in pain and begging to die, Mona shut off the oxygen that was sustaining the patient, resulting in his death. What crime if any did Mona commit? ’11 – Q55 (A) Homicide. (B) Murder if she deliberated on her action. (C) Giving Assistance to Suicide. (D) Euthanasia.

What crime is committed by a person who kills a three-day old baby? ’12 – Q18 a) infanticide; b) homicide; c) murder; d) parricide. SUGGESTED ANSWER: c) murder; The crime committed is not infanticide since the victim killed is not less than three days of age. Killing of a three-day old baby constitutes murder qualified by treachery. Minor children, who by reason of their tender years, cannot be expected to put a defense. When an adult person illegally attacks a child, treachery exists. (People vs. Fallorina, G.R. No. 137347, March 4, 2004)

Delmo learned that his enemy, Oscar was confined at the ICU of the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the ICU and, seeing the disconnected tube, replaced them. The patient survived. It turned out that the patient was Larry, as Oscar had been discharged from the hospital earlier. Delmo was charged with frustrated murder, qualified by evident premeditation and treachery as aggravating circumstances. Discuss the propriety of the charge. ’09 – Q19

What crime is committed by a person who kills his legitimate brother on the occasion of a public calamity? ’12 – Q19 a) parricide; b) homicide; c) murder; d) death caused in a tumultuous affray. SUGGESTED ANSWER: c) murder; Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused (People vs. Tibon, G.R. No. 188320, June 29, 2010). Killing a legitimate brother is not parricide since he is just collateral relative of the accused. However, killing a person on occasion of public calamity is murder.

Delmo was correctly charged with the crime of frustrated murder qualified by treachery – not evident premeditation because the victim was different from the one premeditated against. Delmo has performed all the acts of execution that would produce the death of the victim but for reasons independent of the will of the perpetrator, the death of the victim was not accomplished. Treachery qualifies the crime, because the means, manner and method of committing the intended killing were consciously adopted to insure its execution without risk that may arise from the defense the victim may make. Evident premeditation is absorbed in treachery. Roger, leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10,000 a month as “protection money.” With the monthly payments, Roger assured, the syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his establishment destroyed. Antonio refused to pay the protection money. Days later, at around 3 AM, Mauro, a member of the criminal syndicate, arrived at Antonio’s home and hurled a grenade into an open window of the bedroom where Antonio, his wife and their 3 year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded. State, with reasons, the crime or crimes that had been committed as well as the aggravating circumstances, if any, attendant thereto. ’08 – Q15

What crime is committed when a mother kills the three-day old child of her husband with their daughter? ’12 – Q31 a) parricide; b) infanticide; c) murder; d) homicide. SUGGESTED ANSWER: c) murder; The crime committed is not infanticide since the victim killed is not less than three days of age. As the child of her daughter, the baby is the illegitimate grandchild of the mother. Killing illegitimate grandchild is not parricide. However, killing of a three-day old baby constitutes murder qualified by trechary.

Roger and Mauro conspired to commit the crime of murder qualified by treachery, with the use of means involving great waste and ruin. In this case, Mauro is liable as a principal by direct participation by using a grenade and hurled into an open window of the victims’ bedroom. Killing the victims while they were sleeping and in no position to defend themselves, is a treacherous act (People v. Aguilar, 88 Phil. 693 [1951].) The following are the aggravating circumstances: 1. Section 3, R.A. No. 8294 – when a person commits any of the crimes under the RPC or special laws with the use of explosives, etc., and alike incendiary devices which resulted in the death of any person. 2. Article 23, R.A. No. 7659 – Organized/syndicated crime group

With intent to kill, GGG burned the house where F and D were staying. F and D died as a consequence. What is the proper charge against GGG? ’12 - Q56 a) GGG should be charged with two (2) counts of murder. b) GGG should be charged with arson. c) GGG should be charged with complex crime of arson with double murder. d) GGG should be charged with complex crime of double murder. SUGGESTED ANSWER: d) GGG should be charged with complex crime of double murder. If the main objective of the offender is to kill a particular person who may ne in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is only murder. When the Revised Penal Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life. Murder qualified by means of fire absorbs the crime of arson since the latter is an inherent means to commit the former (People vs. Baluntong, G.R. No. 18206, March 15, 2015; People vs. Cedenio, G.R. No. 93485, June 27, 1994). A single act of burning the house of victims with the main objective of killing them resulting in their deaths resulted in the complex crime of double murder committed by means of fire (People vs. Gaffud, G.R. No. 168050, September 19, 2008).

Eddie brought his son Randy to a local faith-healer known as “Mother Himala.” He was diagnosed by the faith-healer as being possessed by an evil spirit. Eddie thereupon authorized the conduct of a “treatment” calculated to drive the “spirit” away from the boy’s body. Unfortunately, the procedure conducted resulted in the boy’s death. The faith-healer and 3 others were charged with murder and convicted by the lower court. If you were the appellate court Justice, would you sustain the conviction upon appeal? ’07 – Q7 NO, the conviction for murder should not be sustained, because there is no indication that the accused acted with intent to kill Randy. On the contrary, the facts show that the accused acted to “treat” the victim in a

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers way of driving the evil spirit which was believed to have “possessed” him. Considering that the proximate cause of the victim’s death was the healing ritual done by the accused which is not recognized by the law as legitimate, the accused are criminally liable for the victim’s death. As they may have overdone the “healing ritual” they conducted on the victim’s body, causing the latter’s death, although the intent to kill was absent, the accused may be held criminally liable for Reckless Imprudence Resulting in Homicide.

Murder is the unlawful killing of a person which otherwise would constitute only homicide, had it not been attended by any of the following circumstances: 1. With treachery or taking advantage of superior strength, or with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means or on the occasion of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity; 5. With evident premeditation; 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Alternative Answer: No, because none of the circumstances qualifying the murder in Article 248 attended the crime. The faith-healer and his co-accused should only be liable for homicide, because they are not authorized by law to practice medicine and were therefore acting illegally although the wrongful act done was different from what they intended. Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of “shabu” at the time he committed the stabbing. What should be the proper charge against Candido? '05 – Q6

What are the elements of murder? '99 – Q5a The elements of murder are: 1. That a person was unlawfully killed; 2. That such a killing was attended by any of the above-mentioned circumstances; 3. That the killing is not parricide nor infanticide; and 4. That the accused killed the victim

Candido should be charged with murder qualified by treachery because of the suddenness of the stabbing caught the victim by surprise and was totally defenceless. Being under the influence of dangerous drugs is a qualifying aggravating circumstance in the commission of a crime (Section 25, R.A. No. 9165, Comprehensive Drugs Act of 2002). Hence, the penalty for murder shall be imposed in the maximum.

The accused, not intending to kill the victim, treacherously shot the victim while the victim was turning his back to him. He aimed at and hit the victim only on the leg. The victim, however, died because of loss of blood. Can the accused be liable for homicide or murder, considering that treachery was clearly involved but there was no attempt to kill? '99 – Q5b

Alternative Answer: Candido should be charged with homicide only because the incident which gave rise to the stabbing occurred accidentally. There is no conscious and deliberate adoption of the means, method, and manner of attack. However, the penalty for homicide shall be imposed in the maximum because Candido was under the influence of dangerous drugs when he committed the crime, which is a qualifying circumstance under Section 25 of R.A. No. 9165.

The accused is liable for the death of the victim even though he merely aimed and fired at the latter's leg, “not intending to kill the victim”, considering that the gunshot was felonious and was the proximate cause of death. An offender is liable for all the direct, natural, and logical consequences of his felonious act although different from what he intended. However, since specific intent to kill is absent, the crime for said death is only homicide and not murder (People v. Pugay and Samson, 167 SCRA 439 [1988].)

Mang Jose, a septuagenarian, was walking with his 10-year old grandson along Paseo de Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding CRV Honda van and were sent sprawling on the pavement a meter apart. The driver, a Chinese mestizo, stopped his car after hitting the two victims but then reversed his gears and ran over Mang Jose's prostrate body anew and third time by advancing his car forward. The grandson suffered broken legs only and survived but Mang Jose suffered multiple fractures and broken ribs, causing his instant death. The driver was arrested and charged with Murder for the death of Mang Jose and Serious Physical Injuries through Reckless Imprudence with respect to the grandson. Are the charges correct? '01 – Q6

Fidel and Fred harbored a long standing grudge against Jorge who refused to marry their sister Lorna, after the latter got pregnant by Jorge. After weeks of surveillance, they finally cornered Jorge in Ermita, Manila, when the latter was walking home late at night. Fidel and Fred forcibly brought Jorge to Zambales where they kept him hog-tied in a small nipa house located in the middle of a rice field. Two days later, they killed Jorge and dumped his body into the river. What crime or crimes did Fidel and Fred commit? '96 – Q4(2)

YES, the charges are correct. For deliberately running over Mang Jose's prostrate body after having bumped him and his grandson, the driver indeed committed Murder, qualified by treachery. Said driver's deliberate intent to kill Mang Jose was demonstrated by his running over the latter's body twice, by backing up the van and driving it forward, whereas the victim was helpless and not in a position to defend himself or to retaliate. As to the serious physical injuries sustained by Mang Jose's 10year old grandson, as a result of having been hit by the speeding vehicle of said driver, the same were the result of reckless imprudence which is punishable as a quasi-offense in Article 365 of the RPC. The charge of Reckless Imprudence Resulting to Serious Physical Injuries is correct. The penalty next higher in degree to what ordinarily should be imposed is called for, since the driver did not lend help on the spot, which help he could have given to the victims.

Fidel and Fred committed the crime of Murder under Article 248, RPC, the killing being qualified by evident premeditation. This is due to the long standing grudge entertained by the two accused occasioned by the victim's refusal to marry their sister after impregnating her. In People v. Alfeche, 219 SCRA 85 [1995], the intention of the accused is determinative of the crime committed. Where the intention is to kill the victim and the latter is forcibly taken to another place and later killed, it is murder. There is no indication that the offenders intended to deprive the victim of his liberty. Whereas, if the victim is kidnapped and taken to another situs and killed as an afterthought, it is kidnapping with homicide under Article 267, RPC. On his way to buy a lotto ticket, a policeman suddenly found himself surrounded by four men. One of them wrestled the police officer to the ground and disarmed him while the other three companions who were armed with a hunting knife, an ice pick, and a balisong, repeatedly stabbed him. The policeman died as a result of the multiple stab wounds inflicted by his assailants. What crime or crimes were committed? '95 – Q6(1)

Define murder. '99 – Q5a

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers pulled out his service gun and shot and killed Benjie. Pete was charged with murder for the death of Benjie. Pete contended that he acted in defense of his honor and that, therefore, he should be acquitted of the crime. The court found that Benjie died under exceptional circumstances and exonerated Pete of the crime, but sentenced him to destierro, conformably with Article 247 of the RPC. The court also ordered Pete to pay indemnity to the heirs of the victim in the amount of P50,000. '05 – Q8 1. Is the defense of Pete meritorious? '05 – Q8-1

All the assailants are liable for the crime of murder, qualified by treachery, (which absorbed abuse of superior strength) as the attack was sudden and unexpected and the victim was totally defenseless. Conspiracy is obvious from the concerted acts of the assailants. Direct assault would not complex the crime, as there is no showing that the assailants knew that the victim was a policeman; even if there was knowledge, the fact is that he was not in the performance of his official duties, and therefore there is no direct assault. Death under Exceptional Circumstances

The defense of Pete lacks merit. He could have acted in defense of honor, because there was no unlawful aggression against him. At most, what Benjie did could be regarded only as sufficient provocation to Pete. The Court correctly ruled that Benjie’s killing was done under the exceptional circumstances provided for in Article 247 of the RPC.

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 intercourse 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%) ’16 – Q4(a)

2.

Under Article 247 of the RPC, is destierro a penalty? '05 – Q8-2

Destierro is one of the principal penalties under Article 25 of the RPC, but under the exception circumstances provided for in Article 247 of the RPC, destierro is not intended as a penalty but a means to remove the accused from the vicinity, for his protection against possible reprisal from the family or relatives of the other spouse or those of the paramour or mistress (People v. Coricor, 79 Phil. 672 [1947].)

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, 31 October 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 generally 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: Yes, Art. 247 (death or physical injuries inflicted under exceptional 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.

3.

Did the court correctly order Pete to pay indemnity despite his exoneration under Article 247 of the RPC? '05 – Q8-3

YES, the court correctly ordered Pete to pay indemnity, because the legal consequence of the exceptional circumstances in Article 247 of the Code is that of an exempting circumstance where generally there is civil liability although there may be no criminal liability. Alternative Answer: Pete may not be made to pay indemnity because this is part of civil liability which arises only when there is criminal liability. He is not civilly liable, because he is not criminally liable. A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11 PM to 7 AM. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door very carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window, A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical Injuries of B. '01 – Q13 1. Is A liable for C's death? '01 – Q13-1

[b] is Felipa liable for adultery for having sexual relations with Alma? (2.5%) ’16 – Q4(b) No. Under Article 333 of the Revised Penal Code, adultery is committed by any married woman who shall have sexual intercourse with a “woman” not her husband. Thus, Felipa in having homosexual intercourse with Alma, a “woman”, is not committing adultery. The accused was shocked to discover his wife and their driver sleeping in the master’s bedroom. Outraged, the accused got his gun and killed both. Can the accused claim that he killed the two under exceptional circumstances? ’11 – Q44 (A) No, since the accused had time to reflect when he got his gun. (B) No, since the accused did not catch them while having sexual intercourse. (C) Yes, since the wife and their driver desecrated the marital bed. (D) Yes, since the scene shows that they had an intimate relationship.

YES, A is liable for C's death but under the exceptional circumstances in Article 247 of the RPC, where only destierro is prescribed. Article 247 governs since A surprised his wife B in the act of having sexual intercourse with C, and the killing of C was “immediately thereafter” as the discovery, escape, pursuit and killing of C form one continuous act (U.S. v. Vargas, 2 Phil. 194.) 2.

Is A liable for B's injuries? '01 – Q13-2

Likewise, A is liable for the serious physical injuries he inflicted on his wife B but under the same exceptional circumstances in Article 247 of the RPC, for the same reasons.

Pete, a security guard, arrived home late one night after rendering overtime. He was shocked to see Flor, his wife, and Benjie, his best friend, completely naked having sexual intercourse. Pete

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Homicide Yes, I would agree to A's contention that his criminal liability should be for slight physical injury only, because he fired his gun only to pacify the unruly customers of the night club and therefore, without intent to kill. B's gunshot that inflicted a fatal wound on the deceased may not be imputed to A because conspiracy cannot exist when there is a free-for-all brawl or tumultuous affray. A and B are liable only for their respective acts.

Explain and illustrate the stages of execution of the crime of homicide, taking into account the nature of the offense, the essential element of each of the stages of execution and the manner of committing such international felony as distinguished from felony committed through reckless imprudence. (5%) ’12 – Q10a Homicide as an international felony has three stages, attempted, frustrated and consummated. In whatever stages homicide is committed, intent to kill must be established for being an indispensible element thereof. However, if the victim died as a consequence of wounds caused by an act committed with malice, intent to kill is conclusively presumed. Hence, the crime committed is consummated homicide. If the victim died as a consequence of an act committed with recklessness, the crime committed is reckless imprudence resulting in homicide. But if the victim did not die as a consequence of wounds caused by an act committed with malice, intent to kill must be established beyond reasonable doubt. If intent to kill is proven, the crime committed is frustrated or attempted homicide. If intent to kill is not proven, the crime committed is physical injuries. If the offender with the intent to kill attempted to inflict or inflicted nonmortal wound upon the victim, he already directly commenced an overt act to commit homicide. Hence, the crime committed is attempted homicide if he failed to inflict mortal wounds upon the victim by reason of come cause or accident other than his own spontaneous desistance. If the offender with intent to kill inflicted mortal wounds upon the victim, he alreadt performed all acts of execution which would produce the homicide as a consequence. Hence, the crime is either frustrated homicide if death is not produced despite the mortal character of the wound due to cause independent of the will of the offender or consummated homicide if death is produced. All the elements necessary for execution and accomplishment of homicide are present if the victim die due to wounds inflicted with the offender with intent to kill.

Pascual operated a rice thresher in Barangay Napnud where he resided. Renato, a resident of the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly resented by Pascual, one afternoon Pascual, and his two sons confronted Renato and his men who were operating their mobile rice thresher along a feeder road in Napnud. A heated argument ensued. A barangay captain who was fetched by one of Pascual's men tried to appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the intervention of the barangay captain and hacked him to death. What crime was committed by Pascual? '95 – Q6(2) Pascual committed the complex crime of homicide with assault upon a person in authority (Articles. 148 and 249 in relation to Article 48, RPC). A barangay chairman, is in law (Article 152), a person in authority and if he is attacked while in the performance of his official duties or on the occasion thereof the felony of direct assault is committed. Article 48, RPC, on the other hand, provides that if a single act produces two or more grave or less grave felonies, a complex crime is committed. Here, the single act of the offender in hacking the victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave. At about 11 PM, Dante forced his way inside the house of Mamerto. Jay, Mamerto's son, saw Dante and accosted him, Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained Injuries that incapacitated him for 25 days. What crime or crimes did Dante commit? '94 – Q20

Three men gave Arnold fist blows and kicks causing him to fall. As they surrounded and continued hitting him, he grabbed a knife he had in his pocket and stabbed one of the men straight to the heart. What crime did Arnold commit? ’11 – Q25 (A) Homicide with incomplete self-defense, since he could have run from his aggressors. (B) Homicide, since he knew that stabbing a person in the heart is fatal. (C) Homicide mitigated by incomplete self-defense, since stabbing a person to the heart is excessive. (D) No crime, since he needed to repel the aggression, employing reasonable means for doing so.

Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified trespass to dwelling should not be complexed with frustrated homicide because when the trespass is committed as a means to commit a more serious offense, trespass to dwelling is absorbed by the greater crime, and the former constitutes an aggravating circumstance of dwelling (People v. Abedoza, 53 Phil. 788 [1928].) Dante committed frustrated homicide for the stabbing of Jay because he had already performed all the acts of execution which would have produced the intended felony of homicide were it not for causes independent of the act of Dante. Dante had the intent to kill judging from the weapon used, the manner of committing the crime and the part of the body stabbed. Dante is guilty of less serious physical injuries for the wounds sustained by Mamerto. There appears to be no intent to kill because Dante merely assaulted Mamerto without using the knife.

X killed B, mistakenly believing that she was his wife, upon surprising her having sex with another man in a motel room. What is the criminal liability of X? ’11 – Q28 (A) None since he killed her under exceptional circumstances. (B) None since he acted under a mistake of fact. (C) Parricide. (D) Homicide. In a free-for-all brawl that ensued after some customers inside a night club became unruly, guns were fired by a group, among them A and B, that finally put the customers back to their senses. Unfortunately, one customer died. Subsequent investigation revealed that A's gunshot had inflicted on the victim a slight wound that did not cause the deceased's death nor materially contribute to it. It was B's gunshot that inflicted a fatal wound on the deceased. A contended that his liability should, if at all, be limited to slight physical injury. Would you agree? '03 – Q6

Death Cause in a Tumultuous Affray A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in which the above-named members of the two fraternities assaulted each other in a confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities who took part in the rumble were charged for death caused in a tumultuous affray. Will the charge prosper? ’10 – Q10

NO, I beg to disagree with A's contention that his liability should be limited to slight physical injury only. He should be held liable for attempted homicide because he inflicted said injury with the use of a firearm which is a lethal weapon. Intent to kill is inherent in the use of a firearm (Araneta, Jr. v. Court of Appeals, 187 SCRA 123 [1990].)

NO, the charge of death in a tumultuous affray will not prosper. In death caused by tumultuous affray under Article 251 of the Revised

Alternative Answer:

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Penal Code, it is essential that the persons involved did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. In this case, there is no tumultuous affray since the participants in the rumble belong to organized fraternities. The killer of A, a member of the SFC Fraternity could not be any other but a member of the rival fraternity. Conspiracy is therefore present among the attackers from the rival fraternity and thus rules out the idea of an affray. The liability of the attackers should be collective for the crime of homicide or murder as the case may be.

3.

Infanticide and parricide involves a killing where the victim is already a person.

Another Suggested Answer: The conviction for parricide was correct if the infant was already three (3) days old or more when killed because Ana and Oniok are parents of the child. But if the child was less than 3 years old when killed, the crime of both Ana and Oniok is infanticide and they should be convicted for infanticide, not parricide.

During a town fiesta, a free-for-all fight erupted in the public plaza. As a result of the tumultuous affray, A sustained one fatal and three superficial stab wounds. He died a day after. B, C, D and E were proven to be participants in the “rumble”, each using a knife against A, but it could not be ascertained who among them inflicted the mortal injury. Who shall be held criminally liable for the death of A and for what? '97 – Q18

Unintentional Abortion What is the criminal liability, if any, of a pregnant woman who tried to commit suicide by poison, but she did not die and the fetus in her womb was expelled instead? ’12 – Q12 a) The woman who tried to commit suicide is not criminally liable because the suicide intended was not consummated. b) The woman who tried to commit suicide is criminally liable for unintentional abortion which is punishable when caused by violence. c) The woman who tried to commit suicide is criminally liable for abortion that resulted due to the poison that she had taken to commit suicide. d) The woman who tried to commit suicide occurs no criminal liability for the result not intended. SUGGESTED ANSWER: d) The woman who tried to commit suicide occurs no criminal liability for the result not intended. The pregnant woman cannot be held liable for abortion because intent to abort, which is an essential element of this crime, is lacking. Neither can she be held liable for unintentional abortion, because the element of violence is wanting. Criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended (Article 4 of the Revised penal Code). Attempt to commit suicide although an intentional act is not constitutive of a felony. According to Luis B. Reyes, “a person who attempts to commit suicide is not criminally liable, because the society has always considered a person who attempts to kill herself as an unfortunate being, a wretched person more deserving of pity rather than of penalty.” Hence, the woman, who tried to commit suicide, is not liable for the direct, natural and logical consequence of her non-felonious act.

B, C, D, and E being participants in the tumultuous affray and having been proven to have inflicted serious physical injuries, or at least, employed violence upon A, are criminally liable for the latter's death. And because it cannot be ascertained who among them inflicted the mortal injury on A, there being a free-for-all fight or tumultuous affray. B, C, D, and E are all liable for the crime of death caused in a tumultuous affray under Article 251 of the RPC. Giving Assistance to Suicide Francis and Joan were sweethearts, but their parents had objected to their relationship because they were 1st cousins. They forged a pact in writing to commit suicide. The agreement was to shoot each other in the head in which they did. Joan died. Due to medical assistance, Francis survived. Is Francis criminally liable for the death of Joan? ’08 – Q8 YES. Francis is criminally liable for assisting in the suicide of Joan, as evidenced by their written pact (Article 253, RPC.) [Note: Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions.] Infanticide Ana has been a bar girl/GRO at a beer house for more than 2 years. She fell in love with Oniok, the bartender, who impregnated her. But Ana did not inform him about her condition and instead, went home to Cebu to conceal her shame. However, her parents drove her away. So she returned to Manila and stayed with Oniok in his boarding house. Upon learning of her pregnancy, already in an advanced state, Oniok tried to persuade her to undergo an abortion, but she refused. Because of their constant and bitter quarrels, she suffered birth pangs and gave birth prematurely to a live baby girl while Oniok was at his place of work. Upon coming home and learning what happened, he prevailed upon Ana to conceal her dishonor. Hence, they placed the infant in a shoe box and threw it into a nearby creek. However, an inquisitive neighbor saw them and with the help of others, retrieved the infant who was already dead from drowning. The incident was reported to the police who arrested Ana and Oniok. The 2 were charged with parricide under Article 246 of the Revised Penal Code. After trial, they were convicted of the crime charged. Was the conviction correct? '06 – Q11

Aldrich was dismissed from his job by his employer. Upon reaching home, his pregnant wife, Carmi, nagged him about money for her medicines. Depressed by his dismissal and angered by the nagging of his wife, Aldrich struck Carmi with his fist. She fell to the ground. As a result, she and her unborn baby died. What crime was committed by Aldrich? '94 – Q7 Aldrich committed the crime of parricide with unintentional abortion. When Aldrich struck his wife, Carmi, with his fist, he committed the crime of maltreatment under Article 266, par. 3 of the RPC, Since Carmi died because of the felonious act of Aldrich, he is criminally liable of parricide under Article 246, RPC in relation to Article 4, par. 1 of the same Code. Since the unborn baby of Carmi died in the process, but Aldrich had no intention to cause the abortion of his wife, Aldrich committed unintentional abortion as defined in Article 257, RPC. Inasmuch as the single act of Aldrich produced two grave or less grave felonies, he falls under Article 48, RPC, i.e., a complex crime (People v. Salufrancia, 159 SCRA 401). Abortion Practiced by the Woman Herself or by Her Parents

The conviction was incorrect because: 1. Under Article 41 of the Civil Code, a newborn with an intrauterine life of less than 7 months must live for at least 24 hours before it may be considered born and hence, before it may acquire personality of its own; 2. The new born, therefore was still a foetus when killed and was not yet a person. Hence, the crime in law is abortion. It is legally a foetus who was killed, not a person/child because legally it has no personality yet;

An extenuating circumstance, which has the same effect as a mitigating circumstance, is exemplified by: ’11 – Q24 (A) the mother killing her 2-day old child to conceal her dishonor. (B) the accused committing theft out of extreme poverty. (C) the accused raping his victim in extreme state of passion. (D) the accused surrendering the weapon he used in his crime to the authorities. Serious Physical Injuries

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Crimes Against Personal Liberty and Security 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. ’17 -Q8 (a) What are the kinds of unlawful aggression, and which kind was displayed in this case? Explain your answer. (3%) SUGGESTED ANSWER Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. 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. 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 (Rustia v. People, G.R. No. 208351 , October 05, 2016, Bersamin). (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%) SUGGESTED ANSWER (b) The prosecution's contention is not tenable. Shooting the leg of the victim without killing him may be a reasonable means to prevent or repel an actual or imminent unlawful aggression; hence, self-defense is not confined to consummated killing. (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%) SUGGESTED ANSWER (c) There is no treachery as the attack was preceded by heated words. The act was spontaneous, arising from the said circumstance. The sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused, because of the provocative act of the victim, where their meeting was purely accidental.

A jailer inflicted injury on the prisoner because of his personal grudge against the latter. The injury caused illness of the prisoner for more than thirty (30) days. What is the proper charge against the jailer? ’12 - Q46 a) The jailer should be charged with maltreatment of prisoner and serious physical injuries. b) The jailer should be charged with serious physical injuries only. c) The jailer should be charged with complex crime of maltreatment of prisoner with serious physical injuries. d) The jailer should be charged with maltreatment of prisoner only. SUGGESTED ANSWER: a) The jailer should be charged with maltreatment of prisoner and serious physical injuries. Maltreatment of prisoner is committed since the victim maltreated is under the charge of the offender. The offender shall be punished for maltreatment of prisoner in addition to his criminal liability for physical injuries (Article 235 of the Revised Penal Code). ALTERNATIVE ANSWER: b) The jailer should be charged with serious physical injuries only. Maltreatment must relate to the correction of handling of a prisoner under his charge or must be for the purpose of extorting a confession, or of obtaining some information from the prisoner. A jailer who inflicted injuries on the prisoner because of personal grudge against him is liable for physical injuries only (People vs. Javier, C.A., 54 O.G. 6622; RPC by Luis Reyes). To mitigate his liability for inflicting physical injury to another, an accused with a physical defect must prove that such defect restricted his freedom of action and understanding. This proof is not required where the physical defect consists of: ’11 – Q23 (A) a severed right hand. (B) complete blindness. (C) being deaf mute and dumb. (D) a severed leg. X inflicted serious injuries on Y. Because of delay in providing medical treatment to Y, he died. Is X criminally liable for the death of Y? ’11 – Q67 (A) Yes because the delay did not break the causal connection between X's felonious act and the injuries sustained by Y. (B) Yes because any intervening cause between the infliction of injury and death is immaterial. (C) No because the infliction of injury was not the immediate cause of the death. (D) No because the delay in the administration of the medical treatment was an intervening cause. X inflicted violent kicks on vital parts of E's body. E nevertheless was able to flee for fear of his life. Refusing to undergo treatment for his injuries, E died 3 days later. Is X liable for E’s death? ’11 – Q69 (A) No, since kicks on the body cannot cause death. (B) No, since it took too long for death to occur. (C) Yes, since E cannot be compelled to undergo medical treatment. (D) Yes, since it was a natural result of the injuries X inflicted on E.

Kidnapping and Serious Illegal Detention 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%) ’16 – Q11

Slight Physical Injuries and Maltreatment What crime is committed when a person ill-treats another by deed without causing any injury? ’12 - Q67 a) The offender commits maltreatment. b) The offender commits slander by deed. c) The offender commits assault. d) The offender commits coercion. SUGGESTED ANSWER: a) The offender commits maltreatment. Maltreatment is committed by an offender, who shall ill-treat another by deed without causing any injury (Article 266 of the Revised Penal Code).

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.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Having sexual intercourse with Angelino is not rape through sexual intercourse 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 ob ject 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, GR 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. Laog, G.R. No. 178321, October 5, 2011; People v. Larranaga, 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.

As to Daday, the nanny of the child who was told to remain in the van and take care of the child until the ransom is paid, the crime committed is Serious Illegal Detention because the offended party deprived of liberty is a female (Article 267(4), RPC.) As to Juanito, the driver of the van who was seriously intimidated with a gun pointed at him and directed to stop the van and allow the gun-man to board the same, and thereafter to drive to a deserted place, the crime committed by Virgilio is Grave Coercion (Article 286, RPC) and Slight Illegal Detention (Article 268, RPC) for holding the driver before he was allowed to go. Jaime, Andy and Jimmy, laborers in the noodles factory of Luke Tan, agreed to kill him due to his arrogance and miserliness. One afternoon, they seized him and loaded him in a taxi driven by Mario. They told Mario they will only teach Luke a lesson in Christian humility. Mario drove them to a fishpond in Navotas where Luke was entrusted to Emil and Louie, the fishpond caretakers, asking them to hide Luke in their shack because he was running from the NBI. The trio then left in Mario's car for Manila where they called up Luke's family and threatened them to kill Luke unless they give a ransom within 24 hours. Unknown to them, because of a leak, the kidnapping was announced over the radio and TV. Emil and Louie heard the broadcast and panicked, especially when the announcer stated that there is a shoot-to-kill order for the kidnappers. Emil and Louie took Luke to the seashore of Dagat-dagatan where they smashed his head with a shovel and buried him in the sand. However, they were seen by a barangay kagawad who arrested them and brought them to the police station. Upon interrogation, they confessed and pointed to Jaime, Andy, Jimmy and Mario as those responsible for the kidnapping. Later, the 4 were arrested and charged. What crime or crimes did the 6 suspects commit? '06 – Q10

Carla, four (4) years old, was kidnapped by Enrique, the tricycle driver engaged by her parents to drive her to and from school every day. Enrique wrote a ransom note demanding that Carla’s parents pay him P500,000.00 ransom in exchange for her liberty. However, before the ransom note could be received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla was rescued while Enrique was arrested. The prosecutor considered that the ransom note was never received by Carla’s parents and filed a case of "Impossible crime to commit kidnapping" against Enrique. Is the prosecutor correct? If he is not correct, can he instead file a case of grave coercion? ‘14-Q23 A: The crime committed by Enrique is kidnapping for ransom. Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffectual means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Enrique deprived Carla of her liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Article 267 (People v. Tan, GR No. 95322). Furthermore, kidnapping is a crime against liberty while in impossible crime it is important that the accused committed an act that would have been a crime against person or property. The prosecutor cannot file a case of grave coercion instead, since as discussed above the crime committed by Enrique is kidnapping for ransom.

The six (6) suspects committed the following crimes: Jaime, Andy and Jimmy committed the crime of kidnapping for ransom for having seized Luke and causing his detention by Emil and Louie in the latter’s place. Although the agreement among Jaime, Andy and Jimmy was to kill Luke, the agreement appears to have been abandoned when they left Luke to Emil and Louie to he kept and detained by the latter, while they called up Luke’s family and detained by the latter, while they called up Luke’s family and demanded ransom. Mario, the taxi driver, only cooperated as an accomplice by taking Luke to the fishpond after having learned of the unlawful purpose disclosed to him by Jaime, Andy and Jimmy. There was no indication, however, that Mario knew of the demand for ransom. Hence, he may only be held liable as an accomplice to the crime of slight illegal detention under Article 268 of the RPC. Emil and Louie should be liable for serious illegal detention with homicide (Last Par., Article 267, RPC) since the detention was attended by a killing. Their crime would have been slight illegal detention only under Article 268 of the RPC were it not for the killing of the victim.

Which among the following circumstances do NOT qualify the crime of kidnapping? ’11 – Q35 (A) The victim is killed as a consequence of the detention. (B) The offender is a public officer. (C) Ransom is demanded. (D) The victim is raped.

Another Suggested Answer: Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: “Tigil! Kidnap ito!” Terrified, the driver, Juanito, stopped the van and allowed Virigilio to board. Inside the van were Jeremiah, a 6-yearold child, son of multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virigilio instructed him to tell Jeremiah’s parents that unless they give a ransom of P10-million within 2 days, Jeremiah would be beheaded. Daday was told to remain in the van and take care of Jeremiah until the ransom is paid. Virgilio drove the van to his safehouse. What crime or crimes, if any, did Virgilio commit? ’09 – Q9

Jaime, Andy and Jimmy committed the special complex crime of kidnapping for ransom with homicide. The original intention was to demand ransom from the family with the threat of killing. As a consequence of the kidnapping, however, Luke was killed. Thus, the victim was deprived of his freedom and the subsequent killing, though committed by another person, was a consequence of the detention. Hence, this properly qualified the crime as the special complex crime of kidnapping for ransom with homicide (People v. Mamarion, G.R. No. 137554, October 1, 2003; Art. 267, Revised Penal Code). Emil and Louie who smashed the head of the victim and buried the latter in the sand committed murder qualified by treachery or abuse of superior strength. They are not liable for kidnapping because they did not conspire, nor are they aware of the intention to detain Luke whom they were informed was hiding from the NBI (Article 248, RPC). Mario has no liability since he was not aware of the criminal intent and design of Jaime, Andy and Jimmy. His act of bringing Luke to Navotas for "a lesson in Christian humility" does not constitute a crime.

The crime committed against Jeremiah, the 6 year-old child, is Kidnapping and Serious Illegal Detention under Article 267(4), RPC. The evident criminal intent of the offender, Virgilio, is to lock up the child to demand ransom. Whether or not the ransom was eventually obtained will not affect the crime committed because the demand for ransom is not an element of the crime; it only qualifies the penalty to death but the imposition of this penalty is now prohibited by R.A. No. 9346.

Paz Masipag worked as a housemaid and yaya of the one-week old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Martin for a cash advance of P1,000 but Martin refused. One morning, Paz gagged the mouth of Martin’s son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000 as ransom for the release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? '05 – Q5

NO, Edgardo may not be charged with attempted kidnapping inasmuch as no overt act to kidnap or restrain the liberty of the girl had been commenced. At most, what Edgardo has done in the premises was a proposal to Vicente to kidnap the girl, which is only a preparatory act and not an overt act. The attempt to commit a felony commences with the commission of overt act, not preparatory act. Proposal to commit kidnapping is not a crime. Unlawful arrest

Paz committed a special complex crime of kidnapping for ransom with homicide and the penalty shall be only one death penalty. When any individual, in any manner, unlawfully deprives another of his liberty, the crime is designated as kidnapping and serious illegal detention under Article 267, RPC. The penalty shall be death where the crime was committed for the purpose of extorting ransom. It is not necessary that the ransom be obtained by the offender; it is enough that the crime of kidnapping and serious illegal detention be committed for the purpose of demanding ransom. Under the same Article of the Code, the death penalty is also prescribed if the victim of the kidnapping dies as a result of the detention. However, since Paz committed only one felony, a special complex crime of kidnapping for ransom with homicide, she should be sentenced to only one death penalty.

What is the crime committed by any person who, without reasonable ground, arrests or detains another for the purpose of delivering him to the proper authorities? ’12 – Q20 a) unlawful arrest; b) illegal detention; c) arbitrary detention; d) grave coercion. SUGGESTED ANSWER: a) unlawful arrest; Unlawful arrest is committed by a person who, in any case other than those authorized by law, or without reasonable ground thereof, shall arrest or detain another for the purpose of delivering him to the proper authorities (Article 269 of the Revised Penal Code). A, B, C and D are members of the police department of a municipality. Conspiring with one another, they arrested E, without reasonable ground, for the purpose of delivering him to the proper authorities by imputing to E the crime of bribery. While E was being investigated by A, B, C and D, one of them placed a marked five hundred peso bill, together with the money taken from E, to make it appear that E, an employee of the Office of the Local Civil Registrar, agreed to perform an act not constituting a crime in connection with the performance of E's duties, which was to expedite the issuance of a birth certificate. What is the crime committed by A, B, C and D? ’12 - Q63 a) A, 8, C and D committed incriminatory machination through unlawful arrest. b) A, 8, C and D committed intriguing against honor with unlawful arrest. c) A, 8, C and D committed slight illegal detention. d) A, 8, C and D committed corruption of public official. SUGGESTED ANSWER: a) A, B, C and D committed incriminatory machination through unlawful arrest. Unlawful arrest was a necessary means to commit the crime of incriminatory machinations. The accused had to arrest the offended party because it was the only way that they could with facility detain him and, more importantly, search with facility detain him and, more importantly, search his person or effects and, in the process, commingle therewith the marked one peso bill for purposes of incriminating him for the crime of corruption of public officer (People vs. Alagao, G. R. No. L-20721, April 30, 1966, En Banc).

Alternative Answer: Paz committed the crime of serious illegal detention because the victim is a minor; and because the victim died as a consequence of the detention, the special complex crime of serious illegal detention with homicide under the last paragraph of Article 267 of the RPC is committed. DAN, a private individual, kidnapped CHU, a minor. On the 2nd day, DAN released CHU even before any criminal information was filed against him. At the trial of his case, DAN raised the defense that he did not incur any criminal liability since he released the child before the lapse of the 3-day period and before criminal proceedings for kidnapping were instituted. Will DAN's defense prosper? '04 – Q2b NO. DAN's defense will not prosper. Voluntary release by the offender of the offended party in kidnapping is not absolutory. Besides, such release is irrelevant and immaterial in this case because the victim being a minor, the crime committed is kidnapping and serious illegal detention under Article 267, RPC, to which such circumstance, does not apply. The circumstance may be appreciated only in the crime of Slight Illegal Detention in Article 268 (Asistio v. San Diego, 10 SCRA 673 [1964].) A and B were legally separated. Their child C, a minor, was placed in the custody of A the mother, subject to monthly visitations by B, his father. On one occasion, when B had C in his company, B decided not to return C to his mother. Instead, B took C with him to the United States where he intended for them to reside permanently. What crime, if any, did B commit? '02 – Q16

After due hearing on a petition for a writ of amparo founded on the acts of enforced disappearances and extra-legal killing of the son of the complainant allegedly done by the respondent military officers, the court granted the petition. May the military officers be criminally charged in court with enforced disappearance and extra-legal killing? ’08 – Q1a

B committed the crime of kidnapping and failure to return a minor under Article 271, in relation to Article 270, of the RPC, as amended. Article 271 expressly penalizes any parent who shall take from and deliberately fail to restore his or her minor child to the parent or guardian to whom custody of the minor has been placed. Since the custody of C, the minor, has been given to the mother and B has only the right of monthly visitation, the latter's act of taking C to the United States, to reside there permanently, constitutes a violation of said provisions of law.

Yes, the respondent military officers may be criminally charged in court since “enforced disappearance” constitutes arbitrary detention under Article 124 or Unlawful Arrest under Article 269 of the RPC. Extra-legal killing can also be considered murder and/or homicide under Articles 248 and 249, RPC. Another Alternative Answer:

Edgardo induced his friend Vicente, in consideration of money, to kidnap a girl he is courting so that he may succeed to raping her and eventually making her accede to marry him. Vicente asked for more money which Edgardo failed to put up. Angered because Edgardo did not put up the money he required, he reported Edgardo to the police. May Edgardo be charged with attempted kidnapping? '96 – Q8(1)

The petition for the writ of amparo is not a criminal proceeding and will not determine the guilt of the respondents. If the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution (A.M. No. 07-9-12-SC) of the military officers for the special complex crime of kidnapping with murder or

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers homicide under Article 267 of the Revised Penal Code as amended by R.A. No. 7659.

Distinguish coercion from illegal detention. '99 – Q3a

Exploitation of child labor

Coercion may be distinguished from illegal detention as follows: in coercion, the basis of criminal liability is the employment of violence or serious intimidation approximating violence, without authority of law, to prevent a person from doing something not prohibited by law or to compel him to do something against his will, whether it be right or wrong; while in Illegal detention, the basis of liability is the actual restraint or locking up of a person, thereby depriving him of his liberty without authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of illegal detention is not committed.

The statement that “The creditor who resorts to forced child labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery” is FALSE. ’09 – Q1b The proper offense is exploitation of child labor (Article 273, RPC.) Exploitation of child labor is committed by a person, who under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the minor’s will, retain him in his services.

Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw from him a confession which was their intention to obtain through the employment of such means. What crime was committed by the agents of the law? '99 – Q3b

Trespass to Dwelling Under what situations may a private person enter any dwelling, residence, or other establishments without being liable for trespass to dwelling? ’06 – Q2(2)

Evidently, the person tortured and maltreated by the agents of the law is a suspect and may have been detained by them. If so and he had already been booked and put in jail, the crime is and the fact that the suspect was subjected to torture to extort a confession would bring about a higher penalty. In addition to the offender's liability for the physical injuries inflicted. But if the suspect was forcibly brought to the police headquarters to make him admit the crime and tortured / maltreated to make him confess to such crime, but later released because the agents failed to draw such confession, the crime is grave coercion because of the violence employed to compel such confession without the offended party being confined in jail (US v. Cusi, 10 Phil 143.) It is noted that the offended party was merely “"brought” to the police headquarters and is thus not a detention prisoner. Had he been validly arrested, the crime committed would be maltreatment of prisoners.

A private person may enter a dwelling, residence, or other establishment without being liable for trespass to dwelling in the following situations: 1. Where the person so enters to avoid some serious harm to himself; or 2. He did so to save or help an occupant thereof or some other person from serious harm; 3. Where a person so enters to render service to humanity or to the cause of justice; and 4. Where a person enters establishments which cater to public service while still open for such patronage (Last Par., Article 280, RPC); 5. If a public officer or person authorized is conducting a valid arrest or valid search and seizure (Rule 113, Rules on Criminal Procedure.) Grave Coercion

Isagani lost his gold necklace bearing his initials. He saw Roy wearing the said necklace. Isagani asked Roy to return to him the necklace as it belongs to him, but Roy refused. Isagani then drew his gun and told Roy, “If you will not give back the necklace to me, I will kill you!” Out of fear for his life and against his will, Roy gave the necklace to Isagani, What offense did Isagani commit? '98 – Q2

A entered the house of B. Once inside the house of B, A took and seized personal property by compulsion from B with the use of violence and force upon things, believing himself to be the owner of the personal property so seized. What is the criminal liability of A? ’12 - Q58 a) A is criminally liable for robbery with violence because he employed violence in the taking of the personal property from B, robbery characterized by violence being graver than ordinary robbery committed with force upon things. b) A is criminally liable for robbery with force upon things in an inhabited house because the act was committed in a house constituting the dwelling of one or more persons. c) A is criminally liable for grave coercion because the presumption of intent to gain is rebutted. d) A is criminally liable for qualified trespass to dwelling because he employed violence. SUGGESTED ANSWER: c) A is criminally liable for grave coercion because the presumption of intent to gain is rebutted. A is not criminally liable for robbery since the presumption of intent to gain, an element of this crime, is rebutted because he took the personal property under a bona fide belief that he owns the property (Gaviola vs. People, G.R. No. 163927, January 27, 2006). However, A is liable for grave coercion because he used violence in seizing the property by reason of his mistake belief that he owned it (See: People vs. Bautista, CA-G.R. No. 43390, December 17, 1936).

Isagani committed the crime of grave coercion (Article 286, RPC) for compelling Roy, by means of serious threats or intimidation, to do something against the latter's will, whether it be right or wrong. Serious threats or intimidation approximating violence constitute grave coercion, not grave threats. Such is the nature of the threat in this case because it was committed with a gun, which is a deadly weapon. The crime is not robbery because intent to gain, which is an essential element of robbery, is absent since the necklace belongs to Isagani. X was awakened by a loud noise coming from the 1st floor of his house. He went down and discovered that the screen door to the kitchen had been cut and the door itself opened. He called the police. When they arrived, they saw Y lying on the sala. They arrested Y but found no weapon, burglary tool or stolen goods in his person. They examined the whole house and found everything in order. No valuable was missing. Can the crime of attempted robbery be charged against Y? If not, what crime did he commit? ’79 – Q2 The crime committed is consummated qualified trespass to dwelling (Article 280, RPC.) The intention of Y in entering the house of X was indeterminate. For this reason, it cannot be attempted robbery because the overt acts committed had no direct and immediate relation to robbery (People v. Lamahang, 61 Phil. 703 [1935].) Since the screen door of the kitchen had been cut and the door opened, the entrance was against the will of the owner.

The three accused forcibly took their victim from his car but the latter succeeded in freeing himself from their grip. What crime did the three accused commit? ’11 – Q45 (A) forcible abduction. (B) frustrated kidnapping. (C) attempted kidnapping. (D) grave coercion.

Unjust Vexation

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers A was caught peeping through a small hole in the bathroom door while a young 16-year-old lady was taking a bath. Ais liable for: ‘14-Q6 (A) Violation of R.A. 9262 or Violence Against Women and their Children (B) Violation of R.A. 7610 – Child Abuse Law (C) Light coercion (D) Acts of lasciviousness

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%) ’17 – Q9 SUGGESTED ANSWER Because Percy, Pablo, Pater and Sencio commandeered the bus for purpose of robbing the passengers, the crime committed is robbery (People v. Moreno, G.R. No. 94755, April 10, 1992). Since the taking of the victims was merely to commit robbery and not to transport them to another place for purpose of detention, the crime committed was not kidnapping but robbery (People v. Puno, G.R. No. 97471, February 17, 1993; Criminal Law Conspectus by Florenz Regalado). Intent to deprive liberty is not present since the deprivation of liberty is just incidental to the commission of robbery. Since death results by reason or on occasion of robbery, the crime committed is a special complex crime of robbery with homicide. This composite crime is committed even though the victim of homicide is a responding Barangay Tanod (People v. Pelagio, G.R. No. L-16177, May 24, 1967). Even though only Pater killed the Tanod, Percy, Pablo, and Sencio are also liable for robbery with homicide since they failed to attempt to prevent the same (People v. Dela Cruz, G.R. No. 168173, December 24, 2008; People v. Castro, G.R. No: 187073, March 14, 2012). Since the crime committed is robbery with homicide, all other felonies such u arson and direct assault committed by reason or on occasion of robbery shall be integrated into the special complex crime of robbery with homicide (People v. Jugueta, G.R. No. 202124, April 5, 2016, en bane; People v. Ebet, G.R. No. 181635, November IS, 2010; People v. De Leon, G.R. No. 179943, June 26, 2009; People v. Diu, G.R. No. 201449, April 03, 2013). Arson shall not be considered as a separate crime but as a mere aggravating circumstance of commission of the felony by means of fire (U.S. v. Bulfa, G.R. No. 8468, August 20, 1913). The elements of carnapping are: (a) the taking of the motor vehicle which belongs to another; (b) the taking is without consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and (c) the taking is done with intent to gain (People v. Bustinera, G.R. No. 148233, June 8, 2004). In this case, the accused unlawfully took an MMDA bus without tbe consent of its owner, which gives rise to ·the presumption of their intent to gain. Considering that all elements of carnapping are present, the accused shall be liable therefor. Since carnapping is punishable under a special law, it shall be considered as a crime separate from robbery with homicide (People v. Dela Cruz, G.R. No. 174658, February 24, 2009; People c. Napalit, G.R. Nos. 142919/143876, February 4, 2003; People v. Asamuddin, G.R. No. 213913, September 2, 2015; People v. Muit, G.R. No. 181043, October 8, 2008; People v. Roxas, G.R. No. 172604, August 17, 2010).

Pinky was a lessee of a market stall owned by Giovanni. When Pinky refused to pay her rental, Giovannie nailed some wooden barricades on one of the sides of the market stall and posted this warning: “We have closed this portion of the door. Do not open it or else something may happen to you.” What crime/s did Giovanni commit, if any? ’07 – Q10 The crime committed by Giovanni is Light Coercion under Article 287 of the Revised Penal Code, commonly referred to as Unjust Vexation. Although what was one by Giovanni could reasonably be assumed as retaliation to the lessee’s refusal to pay rent, absent any clear violence in the premises, such would not bring about a case of grave coercion. The situation should be interpreted liberally in favor of the offender. The rule of pro reo precludes any finding for grave coercion, because it would be against the offender. The written warning which states “or else something may happen to you” is so equivocal that it may not be interpreted as felonious. A crime is never presumed; it the contrary that is presumed. Alternative Answer: The crime committed by Giovanni is grave coercion because barricading one of the sides of the market stall was an act of violence deliberately done. It is not only an act of unjust vexation or light coercion but of grave coercion. When is embracing, kissing and touching a girl's breast considered only unjust vexation instead of acts of lasciviousness? '94 – Q1(1) The acts of embracing, kissing of a woman arising either out of passion or other motive and the touching of her breast as a mere incident of the embrace without lewd design constitutes merely unjust vexation (People v, Ignacio, CA-G.R. No. 5119-R, September 30, 1950). However, where the kissing, embracing and the touching of the breast of a woman are done with lewd design, the same constitute acts of lasciviousness (People v. Gilo, 10 SCRA 753 [1964].) Crimes Against Property What crime is committed by a capataz who enrolls two fictitious names in the payroll and collects their supposed daily wages every payday? (2%) ‘17 SUGGESTED ANSWER The crime committed is Estafa through Falsification of Public Documents. A capataz is a foreman for the government and since the falsification of of the public document is committed as a means to commit estafa, the proper charge is estafa through falsification of documents.

Pedro, Pablito, Juan and Julio, all armed with bo!os, robbed the house where Antonio, his wife, and three (3) daughters were residing. While the four were ransacking Antonio's house, Julio noticed that one of Antonio's daughters was trying to escape. He chased and caught up with her at a thicket somewhat distant from the house, but before bringing her back, raped her. [a] What crime or crimes, if any, did Pedro, Pablito, Juan and Julio commit? Explain. (2.5%) ’16 – Q15(a)

Robbery 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.

Julio is liable for special complex crime of robbery with rape since he raped the daughter of Antonio on occasion or by reason of robbery. Even if the place of robbery is different from that of rape, the crime is still robbery with rape since what is important is the direct connection between the two crimes (People v. Canastre, G.R. No. L-2055, 24 December 1948). Rape was not separate by distance and time from the robbery. Pedro, Pablito and Juan are liable for robbery by band. There is band in this case since more than three armed malefactors take part in

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers the commission of a robbery. Under Article 296 of the Revised Penal Code, any member of a band, who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same, The assault mentioned in Article 296 includes rape (People v. Hamiana, G.R. Nos. L-3491-94, 30 May 1971). They are not liable, however, for rape under Article 296 since they were not present when the victim was raped and thus, they had no opportunity to prevent the same. They are only liable for robbery by band (People v. Anticamaray, GR No. 178771, 8 June 2011).

inside the room, 8 stabbed G and ran towards the door, leaving the house with C. A also left the house after taking the money of G from the vault. G was brought to the hospital where she died as a result of the wound inflicted by B. Under the given facts, are A, B and C exempt from criminal liability? If not, what is the proper charge against them or any of them? ’12 – Q24 a) A, B and C, being under eighteen (18) years of age at the time of the commission of the offense, are exempt from criminal liability and should be merely subjected to intervention program for child in conflict with the law. b) There being no indication of having acted with discernment, A, B and C are exempt from criminal liability, subject to appropriate programs in consultation with the person having custody over the child in conflict with the taw or the local social welfare and development officer. c) Considering the given facts which manifest discernment, A, B and C are not exempt from criminal liability and should be charged with the complex crime of robbery with homicide, subject to automatic suspension of sentence upon finding of guilt. d) Under the given facts, A, 8 and C are not exempt from criminal liability because they conspired to commit robbery for which they should be collectively charged as principals, and in addition, B should be separately charged with homicide for the death of G, subject to diversion programs for children over 15 and under 18 who acted with discernment. SUGGESTED ANSWER: c) Considering the given facts which manifest discernment, A, B and C are not exempt from criminal liability and should be charged with the complex crime of robbery with homicide, subject to automatic suspension of sentence upon finding of guilt. A child above fifteen (15) years but below eighteen (18) years of age shall be exempt from criminal liability unless he / she has acted with discernment (Section 6 of RA No. 9344). The discernment is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking into consideration all the facts, and the circumstances afforded by the records in each case, the very appearance, the very attitude, the very component and behavior of said minor (People vs. Doqueña, G.R. No. 46539, September 27, 1939). “A”, “B” and “C” are not exempt from criminal liability since the manner they committed the crime indicates discernment. Although the original plan may have been to simply robbed the victim, the conspirators are equally liable as co-principals for all the planned or unanticipated consequences of their criminal design (People vs. Bello, G.R. No. 124871, May 13, 2004). Whenever the commission of the special complex crime of robbery with homicide is proven, all those who took part in the robbery are liable as principals even though they did not take part in the killing (People v. Sumalinog, G.R. No. 128387, February 5, 2004) unless it appears that they endeavored to prevent the homicide (People vs. Gonzales, G.R. No. 14756, April 4, 2003). “A”, “B” and “C” should be charged with robbery with homicide despite they merely plan to rob the victim and only “B” stabbed “G”.

[b] Suppose, after the robbery, the four took turns in raping the three daughters inside the house, and, to prevent identification, killed the whole family just before they left. What crime or crimes, if any, did the four malefactors commit? (2.5%) ’16 – Q15(b) They are liable for a special complex crime of robbery with homicide. In this special complex crime, it is immaterial that several persons are killed. It is also immaterial that aside from the homicides, rapes are committed by reason or on the occasion of the crime. Since homicides are committed by or on the occasion of the robbery, the multiple rapes shall be integrated into one and indivisible felony of robbery with homicide (People v. Diu, GR No. 201449, 3 April 2011) A, B, and C agreed to rob the house of Mr. Dat 10 o’clock in the evening, with Cas the driver of the tricycle which they would use in going to and leaving the house of Mr. D, and Aand Bas the ones who would enter the house to get the valuables of Mr. D. As planned, C parked the tricycle in a dark place, while A and B entered the house thru an open door. Once inside, A entered the master’s bedroom and started getting all the valuables he could see, while Bentered another room. While inside the room, B saw a male person and immediately Bbrought out his gun but he accidentally pulled its trigger. The bullet went through the window, hitting a neighbor that killed him. Neighbors were then awakened by the gunfire and policemen were alerted. Not long after, policemen arrived. Aand B panicked and got hold of a young boy and shouted to the policemen who were already outside of the house that they would harm the boy if the policemen did not disperse. Aand B demanded that they should be allowed to use a vehicle to bring them to a certain place and that would be the time that they would release the young boy. The policemen acceded. In the meantime, Cwas arrested by the policemen while he was about to flee, while Aand B, after releasing the young boy, were arrested. What crime/s did A, B, and Ccommit, and what modifying circumstances attended the commission of the crime/s? ‘14- Q9 A: A, B and C committed the crime of robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code. It is immaterial that the death of a person occurred by mere accident. As long as homicide is produced by eason or on the occasion of the robbery, the crime is robbery with homicide as it is oly the result, without reference or distinction as to the circumstances, causes, modes, or persons intervening in the commission of the crime that has to be taken into consideration. They are not liable for the detention of the boy as illegal detention is absorbed by the crime of robbery. The modifying circumstance of dwelling attended the commissio of the crime. The settled rule is that dwelling is aggravating in robbery with homicide.

Isabel, a housemaid, broke into a pawnshop intent on stealing items of jewelry in it. She found, however, that the jewelry were in a locked chest. Unable to open it, she took the chest out of the shop. What crime did she commit? ’11 – Q1 (A) Robbery in an uninhabited place or in a private building (B) Theft (C) Robbery in an inhabited house or public building. (D) Qualified theft

A, in a public place, fired his gun at B with the intention of killing B, but the gun did not fire because the bullet is a dud. The crime is: ‘14-Q11 (A) attempted homicide (B) grave threat (C) impossible crime (D) alarm and scandal

A, B, and C agreed to rob a house of its cash. A and B entered the house while C remained outside as lookout. After getting the cash, A and B decided to set the house on fire to destroy any evidence of their presence. What crime or crimes did C commit? ’11 – Q26 (A) Robbery and arson since arson took place as an incident of the robbery. (B) Robbery and arson since C took no step to stop the arson. (C) Just for robbery since he only agreed to it and served as lookout. (D) Accomplice to robbery since his role in the crime was minimal.

A, B and C, all seventeen (17) years of age, waited for nighttime to avoid detection and to facilitate the implementation of their plan to rob G. They entered the room of G through a window. Upon instruction of A, G opened her vault while 8 was poking a knife at her. Acting as lookout, C had already opened the main door of the house when the helper was awakened by the pleading of G to A and B to just take the money from the vault without harming her. When the helper shouted for help upon seeing G with A and B

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers The crime of robbery in an inhabited house or public building is mitigated when the offenders: ’11 – Q33 (A) entered the house using false keys. (B) although armed did not fire their weapons. (C) entered through a window without breaking it. (D) although armed took property valued at only P200.

The crime of which Braulio, Ciriaco, and Domingo can be charged is Robbery with Homicide (Article 294(1), RPC) because the killing resulted by reason or on the occasion of the robbery. It is of no moment that the person killed is one of the robbers. A killing by reason or on the occasion of the robbery, whether deliberate or accidental, will be a component of the crime of Robbery with Homicide, a single indivisible offense, as long as it is intimately connected to the robbery.

Christopher, John, Richard and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry gun wherever they go. One night after attending a party, they boarded a taxicab, held the driver at gunpoint and took the latter’s earnings. ’10 – Q23 1. What crime, if any, did the four commit? Enumerate the elements of the crime. ’10 – Q23-1

3.

Braulio shall be liable for Robbery with Homicide (Article 294(1), RPC) for killing Alfredo, since the killing was by reason of the robbery. Ciriaco and Domingo having conspired only in the commission of the robbery, should incur liability only for the crime conspired upon – the robbery, unless they were with Braulio during the killing and could have prevented the same but they did not, in which case they shall also be liable for Robbery with Homicide. It is of no moment that the person killed is one of the robbers and he was killed during the robbery (People v. Barot, 89 SCRA 16 [1979].)

The crime committed is robbery in a band since there were four (4) offenders acting in concert in committing the robbery and all the four were armed. The elements of this crime are: 1. Unlawful taking of personal property belonging to another (the earnings of the taxi-driver); 2. Intent to gain in the taking (of the earnings which belong to the taxi-driver); 3. Violence against or intimidation of person or force upon things was employed in the taking; and 4. There were more than three (3) armed malefactors taking part in the commission of the robbery (Article 296 in relation to Article 294 of the Revised Penal Code.) 2.

Lucas had been the stay-in houseboy of spouses Nestor and Julia for five years. One night, Nestor and Julia were out having dinner, Lucas and his friend Pedro gained entry into the masters’ bedroom with the use of a false key. They found Julia’s jewelry box in one of the cabinets which was unlocked. Lucas believed that Julia’s jewelry was inside the box. Unknown to Lucas and Pedro, the box was empty. Pedro took the box and left the bedroom with Lucas. They were shocked when they saw Nestor in the sala, pointing a gun at them. Nestor ordered them to stop and hand over the box. Pedro complied. It turned out that Nestor had just arrived in time to see Lucas and Pedro leaving the masters’ bedroom with the box. What crime or crimes, if any, did Lucas and Pedro commit? ’08 – Q13

Would your answer be the same if they killed the driver? ’10 – Q23-2

NO. The answer would not be the same. The crime becomes robbery with homicide and all the fraternity brothers are liable. The existence of a band shall be appreciated only as generic aggravating circumstance. Also, if the firearms used were unlicensed, the same would only be taken as generic aggravating circumstance as provided for by Republic Act No. 8294 (People v. Bolinget, 418 SCRA 85, [2003].)

Lucas and Pedro committed Robbery in an Inhabited House (Article 299, RPC) for gaining entry into the house by means of a false key.

The statement that “A person who, on the occasion of a robbery, kills a bystander by accident, is liable for two separate crimes: robbery and reckless imprudence resulting in homicide” is FALSE. ’09 – Q1d

Another Alternative Answer: Lucas and Pedro may also be charged with qualified theft because Lucas abused the trust and confidence of Nestor and Julia, which gave him access to the house.

Only one crime of robbery with homicide is constituted because the Revised Penal Code punishes the crimes as only one indivisible offense when a killing; whether intentional or accidental, was committed by reason or on the occasion of a robbery (Article 294(1), RPC; People v. Mabasa, 65 Phil. 568 [1938].)

Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon went inside the bank, but were unable to get any money from the vault because the same was protected by a time-delay mechanism. They contented themselves with the customers’ cellphones and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan pulled the car out of the curb, hitting a pedestrian which resulted in the latter’s death. What crime or crimes did Jervis, Marlon and Jonathan commit? ’07 – Q3

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A fire-fight ensued between the robbers and the responding policemen, and one of the policemen was killed. ’09 – Q8 1. What crime or crimes, if any, had been committed? ’09 – Q8-1

Jervis and Marlon committed the crime of robbery, while Jonathan committed the special complex crime of robbery with homicide. Jervis and Marlon are criminally liable for the robbery only, because that was the crime conspired upon and actually committed by them, assuming that the taking of the cellphones and the cash from the bank’s customers was effected with intimidation. They will not incur liability for the death of the pedestrian because they have nothing to do with it. Only Jonathan will incur liability for the death of the pedestrian, aside from the robbery, because he alone brought about such death. Although the death caused was not intentional but accidental, it shall be a component of the special complex crime of robbery with homicide because it was committed in the course of the commission of the robbery.

The crimes committed are Robbery with Homicide (Article 294(1), RPC), a single indivisible offense, and Direct Assault with Multiple Attempted Homicide, a complex crime (Articles 48, 148 and 249, RPC; People v. Gayrama, 60 Phil. 796 [1934].) Robbery with Homicide was committed because one of the responding policemen was killed by reason or on the occasion of the robbery being committed. The complex crime of Direct Assault with Multiple Attempted Homicide was committed in respect of the offenders’ firing guns at the responding policemen who are agents of persons in authority performing their duty when fired at to frustrate such performance (People v. Ladjaalam, G.R. Nos. 136149-51, September 19, 2000.) 2.

Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco, and Domingo? ’09 – Q8-3

Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco, and Domingo? ’09 – Q8-2

Alternative Answer: Jervis, Marlon and Jonathan committed robbery with homicide, because there was conspiracy among them to commit the robbery and

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers the death of the pedestrian was caused on the occasion of the robbery. Even though the death was accidental, it is enough that such death was caused by any of its robbers’ felonious act and on the occasion of the commission of the robbery (People v. Guiapar, 129 SCRA 539 [1984].)

accomplice only. His motion for reconsideration claiming that he should be liable only for robbery has merit, but not his contention that he should be liable as an accomplice only. On the other hand, Henry’s motion for reconsideration should be denied for lack of merit. His contention that his liability should only be for attempted robbery with homicide because they did not benefit from the P500,000.00 lacks merit. In robbery, the crime is consummated the moment the unlawful taking is complete even though the offender was not able to appropriate or dispose of the personal property taken. The contention that no aggravating circumstance attended the commission of the crime is not correct. In robbery with violence or intimidation against persons, dwelling is aggravating to the offender who entered the dwelling of the offended party. Night time is not aggravating because the house of the victim was lighted. The burning of the victim’s house is not a separate crime of arson but only a component of the robbery under Article 294, RPC.

Jose employed Mario as gardener and Henry as cook. They learned that Jose won P500,000 in the lotto, and decided to rob him. Mario positioned himself about 30 meters away from Jose’s house and acted as lookout. For his part, Henry surreptitiously gained entry into the house and killed Jose who was then having his dinner. Henry found the P500,000 and took it. Henry then took a can of gasoline from the garage and burned the house to conceal the acts. Mario and Henry fled, but were arrested around 200 meters away from the house by alert barangay tanods. The tanods recovered the P500,000. Mario and Henry were charged with and convicted of robbery with homicide, with the aggravating circumstances of arson, dwelling, and nighttime. Mario moved to reconsider the decision maintaining that he was not at the scene of the crime and was not aware that Henry killed the victim; hence, he was guilty only of robbery, as an accomplice. Mario also claimed that he conspired with Henry to commit robbery but not to kill Jose. Henry, likewise, moved to reconsider the decision, asserting that he is liable only for attempted robbery with homicide with no aggravating circumstance, considering that he and Mario did not benefit from the P500,000. He further alleged that arson is a felony and not an aggravating circumstance; dwelling is not aggravating in attempted robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at the time he was killed. Resolve with reasons the respective motions of Mario and Henry. '05 – Q7

Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of the windows in her house. After taking her personal properties and as they were about to leave, XA decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her bedroom and did nothing to prevent XA from raping OD. What crime or crimes did XA, YB and ZC commit, and what is the criminal liability of each? '04 – Q9b The crime committed by XA, YB and ZC is the composite crime of Robbery with Rape, a single, indivisible offense under Article 294(1) of the RPC. Although the conspiracy among the offenders was only to commit robbery and only XA raped CD, the other robbers, YB and ZC, were present and aware of the rape being committed by their co-conspirator. Having done nothing to stop XA from committing the rape, YB and ZC thereby concurred in the commission of the rape by their co-conspirator XA. The criminal liability of all, XA, YZ and ZC, shall be the same, as principals in the special complex crime of robbery with rape which is a single, indivisible offense where the rape accompanying the robbery is just a component.

The motion of Mario contending that he should be liable only as an accomplice is without merit and therefore should be denied. There was conspiracy to commit the robbery between him and Henry. There being a conspiracy to commit robbery, the act of one is the act of all. Since the conspiracy was only to commit robbery, Mario should be liable only for robbery as a co-principal, not for the composite crime of robbery with homicide. Mario, being 30 meters away from the victim’s house, could not have known what Henry was doing inside the victim’s (Jose’s) house, so much so that he was not in a position to stop the same. Mario, therefore, cannot properly be made answerable for what Henry did inside Jose’s house which was not agreed upon. Applying the subjective test to his participation as co-conspirator to the robbery, Mario’s criminal liability should be aggravated by night time but not by dwelling or arson. Henry’s motion to reconsider the decision is, likewise without merit and should be denied. He is criminally liable for robbery with homicide. His contention that he is only liable for attempted robbery with homicide is not correct because the unlawful taking of the P500,000.00 is deemed complete from the moment he gained control of the money even if he had no opportunity to dispose of the same. The killing of Jose, having been committed on the occasion of a robbery, becomes a component of the robbery, giving rise to the special complex crime of robbery with homicide. Since Henry alone committed the killing of Jose, a fact unknown to Mario, Henry alone should be convicted of said crime. Dwelling, although not aggravating in robbery with force upon things where the circumstance is inherent, is aggravating in robbery with violence against or with intimidation of persons. The burning of the house or arson accompanying is only a component of the robbery under Article 294(1), RPC. Such burning does not constitute a separate crime from robbery with homicide. Night time is aggravating, applying the subjective test, unless the house of Jose was indeed well-lighted during the commission of the offense.

A learned two days ago that B had received dollar bills amounting to $10,000 from his daughter working in the United States. With the intention of robbing B of those dollars, A entered B's house at midnight, armed with a knife which he used to gain entry, and began quietly searching the drawers, shelves, and other likely receptacles of the cash. While doing that, B awoke, rushed out from the bedroom, and grappled with A for the possession of the knife which A was then holding. After stabbing B to death, A turned over B's pillow and found the latter's wallet underneath the pillow, which was bulging with the dollar bills he was looking for. A took the bills and left the house. What crime or crimes were committed? '03 – Q9 The crime committed is robbery with homicide, a composite crime. This is so because A's primordial criminal intent is to commit a robbery and in the course of the robbery, the killing of B took place. Both the robbery and the killing were consummated, thus giving rise to the special complex crime of robbery with homicide. The primary criminal intent being to commit a robbery, any killing on the “occasion” of the robbery, though not by reason thereof, is considered a component of the crime of robbery with homicide as a single indivisible offense A entered the house of another without employing force or violence upon things. He was seen by a maid who wanted to scream but was prevented from doing so because A threatened her with a gun. A then took money and other valuables and left. Is A guilty of theft or of robbery? '02 – Q14a A is liable for robbery because of the intimidation he employed on the maid before the taking of the money and other valuables. It is the intimidation of person relative to the taking that qualifies the crime as robbery, instead of simply theft. The non-employment of force upon things is of no moment because robbery is committed not only by employing force upon things but also by employing violence against or intimidation of persons.

Alternative Answer: Mario should be convicted with robbery only, not for robbery with homicide because he conspired only in the commission of the robbery. As a conspirator in said crime, he is liable as co-principal and not as an

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers A and B are neighbors in Barangay Nuevo I, Silang, Cavite. A is a barangay Kagawad and known to be a bully, while B is reputed to be gay but noted for his industry and economic savvy which allowed him to amass wealth in leaps and bounds, including registered and unregistered lands in several barangays. Resenting B's riches and relying on his political influence, A decided to harass and intimidate B into sharing with him some of his lands, considering that the latter was single and living alone. One night, A broke into B's house, forced him to bring out some titles and after picking out a title covering 200 square meters in their barangay, compelled B to type out a Deed of Sale conveying the said lot to him for P1.00 and other valuable considerations. All the while, A carried a paltik caliber .45 in full view of B, who signed the deed out of fear. When A later on tried to register the deed, B summoned enough courage and had A arrested and charged in court after preliminary investigation. What charge or charges should be filed against A? '01 – Q14

Five robbers robbed, one after the other five houses occupied by different families located inside a compound enclosed by a 6-feet high hollow block fence. How many robberies did the five commit? '96 – Q8(2) The offenders committed only one robbery in the eyes of the law because when they entered the compound, they were impelled only by a single indivisible criminal resolution to commit a robbery as they were not aware that there were five families inside said compound, considering that the same was enclosed by a six-feet high hollow-block fence. The series of robbery committed in the same compound at about the same time constitutes one continued crime, motivated by one criminal impulse. Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings. Knowing him to be "loaded", his friends Jason, Manuel and Dave invited him to poker session at a rented beach cottage. When he was losing almost all his money which to him was his savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal he decided to take revenge on the three cheats. Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did, until they all fell asleep. When Harry saw his companions already sound asleep he hacked all of them to death. Then he remembered his losses. He rifled through the pockets of his victims and got back all the money he lost. He then ran away but not before burning the cottage to hide his misdeed. The following day police investigators found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort. After preliminary investigation, the Provincial Prosecutor charged Harry with the complex crime of arson with quadruple homicide and robbery. Was Harry properly charged? '95 – Q12

The charge for Robbery under Article 298 of the RPC should be filed against A. Said Article provides that any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute and deliver any public instrument or document shall be held guilty of robbery. The paltik caliber .45 firearm carried by A was obviously intended to intimidate B and thus, used in the commission of the robbery. If it could be established that A had no license or permit to possess and carry such firearm, it should be taken only as special aggravating circumstance to the crime of robbery, not subject of a separate prosecution. Alternative Answer: On the premise that the Deed of Sale which A compelled B to sign, had not attained the character of a "public" instrument or document, A should be charged for the crime of Qualified Trespass to Dwelling under Article 280 of the RPC for having intruded into B’s house, and for the crime of Grave Coercion under Article 286 of same Code, for compelling B to sign such deed of sale against his will.

NO, Harry was not properly charged. Harry should have been charged with three (3) separate crimes, namely: murder, theft and arson. Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse of time before he decided to commit the crime and the actual commission of the crime. In addition, Harry employed means which weakened the defense of Jason, Manuel and Dave. Harry gave them the liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to carry out his plan of murder with impunity. The taking of the money from the victims was a mere afterthought of the killings. Hence, Harry committed the separate crime of theft and not the complex crime of robbery with homicide. Although theft was committed against dead persons, it is still legally possible as the offended party are the estates of the victims. In burning the cottage to hide his misdeed, Harry became liable for another separate crime, arson. This act of burning was not necessary for the consummation of the two (2) previous offenses he committed. The fact that the caretaker died from the blaze did not qualify Harry's crime into a complex crime of arson with homicide for there is no such crime. Hence, Harry was improperly charged with the complex crime of arson with quadruple homicide and robbery. Harry should have been charged with three (3) separate crimes, murder, theft and arson.

A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is being used by B as a bank for coins from inside their locked cabinet using their common key. Forthwith, A broke the coconut shell outside of their home in the presence of his friends. '00 – Q11 1. What is the criminal liability of A, if any? '00 – Q11-1 A is criminally liable for Robbery with force upon things, because the coconut shell with the coins inside, was taken with intent to gain and broken outside of their home (Article 299 (b) (2), RPC). 2.

Is A exempted from criminal liability under Article 332 of the RPC for being a brother of B? '00 – Q11-2

NO, A is not exempt from criminal liability under Article 332 because said Article applies only to theft, swindling or malicious mischief. Here, the crime committed is robbery. Two young men, A and B, conspired to rob a residential house of things of value. They succeeded in the commission of their original plan to simply rob. A, however, was sexually aroused when he saw the lady owner of the house and so, raped her. The lady victim testified that B did not in any way participate in the rape but B watched the happening from a window and did nothing to stop the rape. Is B as criminally liable as A for robbery with rape? '99 – Q17

Theft Nel learned that Elgar, the owner of the biggest house in the place, would be out of town for three days with no one left to watch the house. He called his friends Ben, Ardo and Gorio and they planned to take the valuables in the house while Elgar was away. Nel and Ben would go inside the house, Ardo would serve as the lookout, while Gorio would stay in the getaway car. When Elgar left, they carried out their plan to the letter. Nel and Ben went inside the house through the backdoor which was left unlocked. None of the rooms and drawers inside were locked. They took the money, jewelry and other valuables therefrom and immediately left using the getaway car.

YES, B is as criminally liable as A for the composite crime of robbery with rape under Article 294(1). Although the conspiracy of A and B was only to rob, B was present when the rape was being committed which gave rise to a composite crime, a single indivisible offense of robbery with rape. B would not have been liable had he endeavored to prevent the commission of the rape. But since he did not when he could have done so, he in effect acquiesced with the rape as a component of the robbery and so he is also liable for robbery with rape.

After driving for about one kilometer, Nel realized he left his bag and wallet with IDs in the house and so he instructed Gorio to

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers drive back to the house. Nel just went in thinking that the house was still empty. But to his surprise, Nel found Fermin seated on a bench with Nel's bag and wallet beside him and appeared to be texting using his smart phone. Nel took a golf club near him and hit Fermin with it. Fermin shouted for help, but Nel kept hitting him until he stopped making noise. The noise alerted the neighbor who called the police. Nel, Ben, Ardo and Gorio were caught. Fermin died. What is the criminal liability of Nel, Ben, Ardo and Gorio? Explain. (5%) ’15-Q11

the chief of police of that station who appropriated the money for his own benefit, what crime was committed by the chief of police? Explain. (2.5%) ’15-Q19

The chief of police is liable for theft. Although he is not the one who found the property, he is considered as finder in fact since the property was surrendered to him by the actual finder. He acquired the position occupied by the actual finder and assumed by voluntary substitution the obligation to surrender the property to the lawful owner. Appropriating the property is of the same character of that made by one who originally found the same (People v. Avila, G.R. No. L-19786, March 31, 1923). The liability of the finder in fact is the same liability of the finder in law. Thus, what the Chief of Police committed is theft.

Answer: Nel, Ben, Ardo and Gordo are criminally liable as principals for the crime of Theft. They conspired to take Elgar’s personal properties without his knowledge, with intent to gain, and without violence against or intimidation of persons or force upon things (Art. 308, RPC) Nel and Ben entered the house through an unlocked backdoor and took the valuables from the rooms and drawers that were likewise left unlocked. Nel and Ben are liable as principals by direct participation while Ardo and Gorio are principals by indispensable cooperation because they have concurred in the criminal resolution and cooperated by performing another act as lookout and driver of a getaway car, respectively, which were indispensable for the commission of the crime (Art. 17, RPC).

Madam X, a bank teller, received from depositor Madam Y a check payable to cash in the amount of P1 million, to be deposited to the account of Madam Y. Because the check was not a crossed check, Madam X credited the amount to the account of her good friend, Madam W, by accomplishing a deposit slip. Seven (7) days after, Madam X contacted her good friend, Madam W and told her that the amount of P1 million was wrongfully credited to Madam W, thus, Madam X urged Madam W to withdraw the amount of P1 million from her accountand to turn over the same to Madam X. As a dutiful friend, Madam W readily acceded. She was gifted by Madam X with an expensive Hermes bag after the withdrawal of the amount. What crime/s, if any, did Madam X and Madam W commit? Explain. ‘14- Q4

Nel, however, is also liable for the separate crime of Homicide for the death of Fermin. The killing of Fermin was a separate act and was not a necessary means for committing Theft (Art. 48, RPC) because the latter crime was already consummated. Nel killed Fermin for a different reason perhaps because of his anger that Fermin was in possession of his bag and wallet and appeared to be using his smart phone to contact the police.

A: Madam X shall be liable as principal in the crime of qualified theft committed with grave abuse of confidence anad punishable under Art 310 of the Revised Penal Code. Being a bank teller, she had only the physical possession, not juridical possession of money received by her. Consequently, her subsequent misapprpriation of the same shall constitute the crime of theft, qualified with grave abuse of confidence. Madam W, on the other hand, is not criminally liable. She had no knowledge of the crime and withdrew the money from her account and turned over the same to Madam X because of the misrepresentatio of the latter that the P1 million was wrongfully deposited to her account. Her participation is not based on conspiracy or community of design, without which she cannot be held liable as principal by direct participation, principal by indispensable cooperation or accomplice. Receiving an expensive Hermes bag from Madam X will not make Madam W liable as an accessory since the latter has no actual knowledge of the commission of the crime of theft by the former and the bag cannot be considered as the “effects of the crime” since there is no showing that the money withdrawn was used in buying it.

ALTERNATIVE ANSWER: All the offenders are liable for the crime of Robbery with Homicide. They are in conspiracy with each other, and after unlawfully taking the property of Elgar, killing occurred. In People v. Disimban, the Supreme Court affirmed the conviction for Robbery with Homicide although the robbery victim was different from the homicide victim. In People v. Sandoval, the Supreme Court ruled that those who took part as principals in the Robbery will also be held guilty as principals of Robbery with Homicide although they did not actually take part in the Homicide.

Is the crime of theft committed by a person who, with intent to gain, takes a worthless check belonging to another without the latter's consent? ’12 - Q15 a) Yes. All the elements of the crime of theft are present: that there be taking of personal property; that the property belongs to another; and that the taking be done with intent to gain and without the consent of the owner. b) No. The taking of the worthless check, which has no value, would not amount to the crime of theft because of the legal impossibility to commit the intended crime. c) Yes. Theft is committed even if the worthless check would be subsequently dishonored because the taker had intent to gain from the check at the time of the taking. d) Yes. Theft is committed because the factual impossibility to gain from the check was not known to the taker or beyond his control at the time of taking. SUGGESTED ANSWER: b) No. The taking of the worthless check, which has no value, would not amount to the crime of theft because of the legal impossibility to commit the intended crime. Stealing a worthless check constitutes impossible crime. There is impossibility to accomplish the crime of theft since the check has no value (See: Jacinto vs. People, G.R. No. 162540, July 13, 2009).

Bruno, a taxi driver, had an indebtedness in the sum of P10,000.00 which would become due in one week. He was starting to worry because he still had not raised the amount to pay for his debt. Every day, he had prayed for divine intervention. One night, while returning the taxi to the garage, he found a wallet on the back seat. Inspecting it, he learned that it contained exactly Pl 0,000.00 cash, the amount of his obligation, and IDs. Thinking it was divine intervention, and that his prayers were answered, he took the money and used it to pay his debt. a) What crime, if any, did Bruno commit? Explain. (2.5%)

ANSWER: Bruno committed the crime of theft. The owner is known to Bruno because there are IDs found in the wallet. Failure to deliver to the local authorities or to its owner the lost property which he found constitutes theft under Article 308 of the Revised Penal Code.

b) Assuming that instead of using the money, Bruno turned over the wallet and its contents to the nearby police station, and it was

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 1. Is the crime of theft susceptible of commission in the frustrated stage? Explain your answer in relation to what produces the crime of theft in its consummated stage and by way of illustration of the subjective and objective phases of the felony. (5%) ’12 – QIIIa No. Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. Thus, theft cannot have a frustrated stage. Theft can only be attempted or consummated (Valenzuela vs. People, G.R. No. 160188, June 21, 2007, En Banc). Parsing through the statutory definition of theft under Article 308, it is clear that theft is already “produced” upon the “tak[ing of] personal property of another without the latter’s consent.” Each felony under the RPC has a “subjective phase.” Of that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, without prior acts, should result in the consummated crime. After that point has been breached, the subjective phase ends and the objective phase begins. It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted. On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, “subjectively the crime is complete.” Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage, At the same time, without unlawful taking as an act of execution, the offense could only be attempted thefts, after all.

Did Eva Marie incur criminal liability in bringing the puppy home as a pet?

YES, Eva Marie incurred criminal liability for the crime of simple theft. The puppy is personal property which, is susceptible of taking and has pecuniary value. Obviously, she took it with intent to own it; hence, with intent to gain. 2.

Did she incur civil liability? ’10 – Q18

Eva Marie may incur civil liability if the owner of the puppy would incur a loss due to non-restitution or return thereof to the owner. Finding any property of value, legally regarded as lost property, would constitute theft if the finder failed to deliver the same to the local authorities or to its owner (Article 308, Par. 1, RPC.) Once Eva Marie is found guilty of theft, she will incur civil liability which consists of restitution or reparation for damage caused and indemnification for consequential damages (Art. 100, RPC.) The general rule is: a person criminally liable is also civilly liable. Eman, a vagrant, found a bag containing IDs and a diamond ring along Roxas Blvd. Knowing that it was not his, he went to the nearest police station to seek help in finding the owner of the bag. At the precinct, PO1 Melvin attended to him. In the investigation, Eman proposed to PO1 Melvin, “in case you don’t find the owner, let’s just pawn the ring and split the proceeds 50/50.” PO1 Melvin then went straight to the pawnshop and pawned the ring for P50,000. Eman never saw PO1 Melvin again. ’08 – Q5 1. What is the criminal liability of Eman, if any? ’08 – Q5-1 Eman is guilty of theft (Article 308, RPC) for failure to return the lost property to the rightful owner. His intent to gain became apparent when he proposed to pawn the ring and to share the proceeds with PO1 Melvin.

What crime is committed by a person who, having found a ring, fails to deliver the same to the owner or to the local authorities? ’12 - Q61 a) The finder commits theft. b) The finder commits concealment. c) The finder commits qualified theft. d) The finder commits usurpation of property. SUGGESTED ANSWER: a) The finder commits theft. Theft is committed by a person whi, having found lost property, shall fail to deliver the same to the local authorities or to its owner (Article 208 of the Revised Penal Code).

Another Alternative Answer: Eman has no criminal liability. The fact alone that he suggested to PO1 Melvin such an improper proposal does not make Eman criminally liable. It is noted that there was no overt act on the part of Eman. Hence, a criminal thought or mere intention, no matter how immoral or improper it may be, will never constitute a felony (Luis B. Reyes, The Revised Penal Code, Volume I, p. 32, 16th Ed., [2006].) 2.

Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner is liable for: ’11 – Q21 (A) occupation or usurpation of personal property. (B) civil damages only. (C) theft. (D) other deceits.

What is the criminal liability of PO1 Melvin, if any? ’08 – Q5-2

PO1 Melvin committed the crime of malversation of property under Article 217, RPC since the subject ring appears to be his accountability and the act of pawning the same constitutes misappropriation. DD was engaged in the warehouse business. Sometime in November 2004, he was in dire need of money. He, thus, sold merchandise deposited in his warehouse to VR for P500,000. DD was charged with theft, as principal, while VR as accessory. The court convicted DD of theft but acquitted VR on the ground that he purchased the merchandise in good faith. However, the court ordered VR to return the merchandise to the owner thereof and ordered DD to refund the P500,000 to VR. DD moved for the reconsideration of the decision insisting that he should be acquitted of theft because being the depositary, he had juridical possession of the merchandise. VR also moved for the reconsideration of the decision insisting that since he was acquitted of the crime charged, and that he purchased the merchandise in good faith, he is not obligated to return the merchandise to its owner. Rule on the motions with reasons. '05 – Q2(2)

Paul lives with his long-time girlfriend Joan in condominium in Makati. For more than a year, he has been secretly saving money in an envelope under their bed to buy her an engagement ring. One day, while Joan was cleaning their room, she found the envelope, took the money and left Paul. As prosecutor, what crime, if any, would you charge Joan? ’10 – Q14 Joan may be charged for qualified theft because she took away personal property belonging to Paul without the latter’s consent, so obviously with intent to gain, and with grave abuse of confidence. But Joan may invoke as a defense Article 332 of the Revised Penal Code, under which no criminal liability but only civil liability shall result from the crime of theft, swindling or malicious mischief committed by “spouses”, among others. The reference to “theft” under the Article embraces both simple theft and qualified theft, and the reference to “spouses” includes common-law or “live-in” relationship (People v. Constantino, 60 O.G. 3603 [1963].)

The motion for reconsideration of DD is DENIED. In this case, there being no proof that title to the goods was transferred to DD, only physical possession is presumed transferred to and obtained by DD (U.S. v. Vera, 43 Phil. 1001 [1921].) The principal distinction between the two crimes is that in theft the thing is taken, while in estafa the accused received the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property, if he was entrusted only

On their way home, Eva Marie saw an injured chow chow puppy behind a bush. Since the puppy did not have a collar, she brought it home so she could have it as a pet.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers with material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa (Santos v. People, 181 SCRA 487 [1990].) The motion for reconsideration of VR is DENIED. While VR is acquitted of theft, such acquittal does not of itself negate civil liability of VR to return the property stolen by DD. Civil liability on the part of VR exists despite his acquittal, since his acquittal is premised on the finding that his liability is only civil in nature (De Guzman v. Alva, 51. O.G. 1311 [1955].) DD was unlawfully deprived of his personal property and as owner or possessor, he may recover such movables.

NO, P's defense is not valid. In a charge for theft, it is enough that the personal property subject thereof belongs to another and not to the offender (P). It is irrelevant whether the person deprived of the possession of the watch has or has no right to the watch. Theft is committed by one who, with intent to gain, appropriates property of another without the consent of its owner. And the crime is committed even when the offender receives property of another but acquires only physical possession to hold the same. Qualified Theft Forest Ranger Jay Velasco was patrolling the Balara Watershed and Reservoir when he noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and after a few minutes, he saw Rene and Dante coming out of the gate with some more newly-cut logs. He apprehended and charged them with the proper offense. '06 – Q15 1. What is that offense? '06 – Q15-1

Francis Garcia, a Jollibee waiter, found a gold bracelet in front of his working place in Makati and, upon inspecting it, saw the name and address of the owner engraved on the inside. Remembering his parents' admonition that he should not take anything which does not belong to him, he delivered the bracelet to PO1 Jesus Reyes of the Makati Quad precinct with the instruction to locate the owner and return it to him. PO1 Reyes, instead, sold the bracelet and misappropriated the proceeds. Subsequent events brought out the fact that the bracelet was dropped by a snatcher who had grabbed it from the owner a block away from where Francis had found it and further investigation traced the last possessor as PO1 Reyes. Charged with theft, PO1 Reyes reasoned out that he had not committed any crime because it was not he who had found the bracelet and, moreover, it turned out to have been stolen. Resolve the case. '01 – Q9

The offense committed is qualified theft, pursuant to Section 1 of P.D. No. 330 and Section 8 of P.D. No. 705 defining the offense committed by any person who directly or indirectly cuts, gathers, removes or smuggles timber or other forest products in violation of existing laws, rules and regulations, from any public forest reserves, and other kinds of public forest or even privately owned forest lands. 2.

Charged with theft, PO1 Reyes is criminally liable. His contention that he has not committed any crime because he was not the one who found the bracelet and it turned out to be stolen also, is devoid of merit. It is enough that the bracelet belonged to another and the failure to restore the same to its owner is characterized by intent to gain. The act of PO1 Reyes of selling the bracelet which does not belong to him and which he only held to be delivered to its owner, is furtive misappropriation with intent to gain. Where a finder of lost or mislaid property entrusts it to another for delivery to the owner, the person to whom such property is entrusted and who accepts the same, assumes the relation of the finder to the owner as if he was the actual finder: if he would misappropriate it, he is guilty of theft (People v. Avila, 44 Phil. 720 [1922].)

During the preliminary investigation and up to the trial proper, Rene and Dante contended that if they were to be held liable, their liability should be limited only to the newly-cut logs found in their possession but not to those found outside the gate. If you were the judge, what will be your ruling? '06 – Q15-2

If I were the judge and the evidence adduced by the prosecution convincingly show a clear link between the accused and the cuts piled outside the gate of the watershed, I will hold the accused criminally liable not only for the newly-cut logs in their possession but also for those found outside the gate. Circumstantial evidence proving that the accused and no other person could have done the cutting of the logs, such as the manner of cutting the logs, the area where they cut the logs they were carrying, and other indications pointing to them as the culprits may be considered.

Sunshine, a beauteous “colegiala” but a shoplifter, went to the Ever Department Store and proceeded to the women's wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft of the swimsuit consummated, frustrated or attempted? '00 – Q3

Another Suggested Answer: If I were the judge, I will rule in favor of Rene and Dante. The liability of Rene and Dante is limited only to the newly-cut logs found in their possession unless convincingly proved that they were the ones who brought out the logs outside the gate. It is fundamental rule in this jurisdiction that the guilt of the accused must be proven beyond reasonable doubt in order to be convicted for the crime charged. The facts of the case at bar does not show that Rene and Dante were the ones who took and brought out the logs found outside the gate. Culpability not having been sufficiently proved, they should not be held liable.

The theft was consummated because the taking or asportation was complete. The asportation is complete when the offender acquired exclusive control of the personal property being taken. In this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store (Valenzuela v. People, 525 SCRA 306 [2007].) With evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property.

A vehicular accident occurred on the national highway in Bulacan. Among the first to arrive at the scene of the accident was A, who found one of the victims already dead and the others unconscious. Before rescuers could come, A, taking advantage of the helpless condition of the victims, took their wallets and jewelry. However, the police, who responded to the report of the accident, caught A. What crime or crimes did A commit? '02 – Q5

Mario found a watch in a jeep he was riding, and since it did not belong to him, he approached policeman P and delivered the watch with instruction to return the same to whoever may be found to be the owner. P failed to return the watch to the owner and, instead, sold it and appropriated for himself the proceeds of the sale. Charged with theft, P reasoned out that he cannot be found guilty because it was not he who found the watch and, moreover, the watch turned out to be stolen property. Is P's defense valid? '98 – Q19

A committed the crime of qualified theft because he took the wallets and jewelry of the victims with evident intent to gain and on the occasion of a vehicular accident wherein he took advantage of the helpless condition of the victims. But only one crime of qualified theft was committed although there were more than one victim divested of their valuables, because all the taking of the valuables were made on one and the same occasion, thus constituting a continued crime.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers A fire broke out in a department store, A, taking advantage of the confusion, entered the store and carried away goods which he later sold. What crime, if any, did he commit? '02 – Q14b

The following distinctions between brigandage and robbery by band: The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in Art. 306. Such formation is sufficient to constitute a violation of Art. 306. It would not be necessary to show, in a prosecution under it, that a member ir members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by Art. 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of Article 306, it is required that the band “sala a los campos para dedicarse a robar” (People vs. Puno, G.R. No. 97471, February 17, 1993).

A committed the crime of qualified theft because he took the goods on the occasion of and taking advantage of the fire which broke out in the department store. The occasion of a calamity such as fire, when the theft was committed, qualifies the crime under Article 310 of the RPC, as amended. A, a receiving teller of the PNB, taking advantage of his position, appropriated the amount of P1,000 which he had in his possession. Did he commit malversation, estafa, theft or qualified theft? ’75 – Q10 The crime is qualified theft. The receiving teller has only the physical possession of the amount of P1,000, which is presumably a deposit received from a client of the bank. Although the PNB is a government bank, it however, performs proprietary functions and the receiving teller cannot be considered a public officer under Article 203 of the RPC. In any event, malversation is committed by an accountable public officer to whom public funds are entrusted for his custody. It cannot be estafa as the teller does not have juridical possession of the amount. His possession of the money is in the possession of the bank. The crime cannot be simple theft because the duties of a receiving teller, being pecuniary, are clothed with monetary responsibilities and confidential in nature. The position involves trust and confidence. So, qualified theft is committed as the misappropriation is with grave abuse of confidence (People v. Lacson, 57 Phil. 325.)

Brigandage

Usurpation of Real Rights Teresita is the owner of a 2-hectare land in Bulacan which she planted to rice and corn. Upon her arrival from a 3-month vacation in the U.S., she was surprised to discover that her land had been taken over by Manuel and Teofilo who forcibly evicted her tenantcaretaker Juliana, after threatening to kill the latter if she would resist their taking of the land. Thereafter, Manuel and Teofilo plowed, cultivated and appropriated the harvest for themselves to the exclusion of Teresita. 1. What crime or crimes did Manuel and Teofilo commit?

Elements

1. There are at least 4 persons; 2. They form a band or robbers; 3. The purpose is any of the following: (see below)

More than three armed malefactors factors take part in the commission of a robbery.

Purpose

1. Commit robbery in a highway 2. Kidnap to extort or get ransom 3. Any other purpose to be achieved by means of force or violence

Commit robbery, but not necessarily in a highway.

The agreement among more than three armed men is to commit robbery in the highway.

The agreement is to commit only a particular robbery.

Agreement

Manuel and Teofilo committed the crime of usurpation of real rights under Article 312 of the RPC for employing violence against or intimidation of persons. The threats to kill employed by them in forcibly entering the land is the means of committing the crime and therefore absorbed in the felony, unless the intimidation resulted in a more serious felony. 2.

Suppose Manuel and Teofilo killed Juliana when the latter refused to surrender possession of the land, what crime or crimes did the two commit? '96 – Q17

Robbery in band

Estafa Val, a Nigerian, set up a perfume business in the Philippines. The investors would buy the raw materials at a low price from Val. The raw materials consisted of powders, which the investors would mix with water and let stand until a gel was formed. Val made a written commitment to the investors that he would buy back the gel at a higher price, thus assuring the investors of a neat profit. When the amounts to be paid by Val to the investors reached millions of pesos, he sold all the equipment of his perfume business, absconded with the money, and is nowhere to be found. What crime or crimes were committed, if any? Explain. (5%) ’16 – Q7

The crime would still be usurpation of real rights under Article 312, RPC, even if the said offenders killed the caretaker because the killing is the “violence against persons” which is the means for committing the crime and as such, determinative only. However, this gives way to the proviso that the penalty provided for therein is “in addition to the penalty incurred in the acts of violence (murder or homicide) executed by them”. The crime is similar to a robbery where a killing is committed by reason thereof, giving rise only to one indivisible offense (People v. Judge Alfeche), plus the fine mentioned therein. Brigandage

The crime committed is estafa through false pretenses (Art. 315 par. 2(a)). Val defrauded the investors by falsely pretending to possess business or imaginary transactions. The fact that he sold all the equipment of his perfume business, and absconded with the money when the amounts to be paid by him to the investors reached millions of pesos shows that the, transaction or his business is imaginary, and he defrauded the victims.

Who are brigands? (5%) ’12 – QVIIa When more than three armed persons from a band of robbers for the purpose of committing robbery in the highway, or kidnapping persons for the purpose of extortion or to obtain ransom, for any other purpose to be attained by means of force and violence, they shall be deemed highway robbers or brigands (Article 306 of the Revised Penal Code). Distinguish brigandage from robbery in band as to elements, purpose of the offender and agreement among the offenders. (5%) ’12 - QVIIb

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Domingo is the caretaker of two (2) cows and two (2) horses owned by Hannibal. Hannibal told Domingo to lend the cows to Tristan on the condition that the latter will give a goat to the former when the cows are returned. Instead, Tristan sold the cows and pocketed the money. Due to the neglect of Domingo, one of the horses was stolen. Knowing that he will be blamed for the loss, Domingo slaughtered the other horse, got the meat, and sold it to Pastor. He later reported to Hannibal that the two horses were stolen. [a] What crime or crimes, if any, did Tristan commit? Explain. (2.5%) ’16 – Q13(a)

cause of defraudation required in estafa under the Revised Penal Code. He is also liable for two counts of violation of BP 22 for the issuance of the five checks which were dishonored for insufficiency of funds. The gravamen of BP 22 is the issuance of a worthless or unfunded check. Deceit is not material to BP 22. Mr. Ed’s defense of partial payments constituting novation and absence of demand letter will not exculpate him from the criminal liability incurred. The partial payments made would only affect his civil liability while his claim of absence of demand letter is negated by his receipt of notices of dishonor.

Tristan is liable for Estafa through Misappropriation under Article 315 of the Revised Penal Code. He received the cows under obligation involving the duty to return the same thing deposited, and acquired legal or juridical possession in so doing, since their transaction is a commodatum. Selling the cows as if he owned it constitutes misappropriation or conversion within the contemplation of Article 315.

William is the son-in-law of Mercedes who owns several pieces of real property. In 1994, William's wife, Anita, died. In 1996, William caused the preparation of a Special Power of Attorney (SPA) giving him the authority to sell two (2) parcels of land registered in the name of Mercedes. The signature of Mercedes in the SPA was forged and, through this forged SPA and without the consent and knowledge of Mercedes, William succeeded in selling the two (2) parcels for Php 2,000,000. He pocketed the proceeds of the sale.

[b] What crime or crimes, if any, were committed by Domingo? Explain. (2.5%) ’16 – Q13(b)

Mercedes eventually discovered William's misdeeds and filed a criminal complaint. William was subsequently charged with estafa through falsification of public document.

Domingo is liable for qualified theft under Article 308 of the Revised Penal Code. Although Tristan received the horse with the consent of the owner, Hannibal, his possession is merely physical or de facto since the former is an employee of the latter. Slaughtering the horse, which he physically possessed, and selling its meat to Pastor shall be considered as taking without consent of the owner with intent to gain, which constitutes theft (Balerta v. People, G.R. No. 205144, 26 November 2014). Since the horse is accessible to him, the theft is qualified by the circumstance of abuse of confidence (Yongco v. People, G.R. No. 209373, 30 July 2014). Further, Domingo committed the crime of violation of the AntiCattle Rustling Law of 1974 (P.D. No. 533). Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/raiser, of large cattle, which includes cows and horses, whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser.

Was the criminal charge proper? (7%) ’13-Q8 SUGGESTED ANSWER: The criminal charge of estafa through falsification is correct. William forged the signature of his mother-in-law in the Special Power of Attorney, which is a public document, as a necessary means to sell her properties to third parties without delivering the proceeds thereof. Although the relationship of affinity created between William and his mother-in-law survived the death of either party to the marriage, the coverage of the absolutory cause under Art. 332 (1) of the Revised Penal Code cannot be applied to him. It is strictly limited to the simple crimes of theft, estafa and malicious mischief. It does not apply where any of the crimes mentioned is complexed with another crime. This is because when estafa is committed through falsification of a public document, the matter acquires a very serious public dimension and goes beyond the respective rights and liabilities of family members among themselves. Effectively, when the offender resorts to an act that breaches the public interest in the integrity of public documents as a means to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Art. 332 (Intestate Estate of Manolita Gonzales Vda. De Carungcong v. People, G.R. No. 181409, February 11, 2010).

Mr. Benjie is the owner of a hardware store specializing in the sale of plumbing materials. On February 1, 2014, Mr. Ed, a friend and regular customer of Mr. Benjie, visited the hardware store and purchased several plumbing materials in the total amount of P5 million. Mr. Benjiereadily accepted Mr. Ed’s payment of three (3) postdated checks in the amount of P1 million Pesos each in view of the assurance of Mr. Ed that the checks will be honored upon presentment for payment. Mr. Benjie, as a consequence, immediately delivered the materials to the house of Mr. Ed. The following day, Mr. Ed went back to Mr. Benjie to tender another two (2) postdated checks in the amount of P1 million each to complete the payment, with the same assurance that the checks will be honored upon presentment for payment. When the checks were presented for payment, all were dishonored for insufficiency of funds and corresponding notices of dishonor were sent and received by Mr. Ed. One month after receipt of the notices of dishonor, Mr. Ed failed to make good the checks. Thereafter, Mr. Benjie filed before the public prosecutor’s office a complaint against Mr. Ed, although no demand letter was earlier sent to Mr. Ed. During the preliminary investigation, Mr. Benjie accepted several amounts from Mr. Edas partial payments. The wife of Mr. Benjie protested and insisted that the complaint should continue despite the partial payments. On the other hand, Mr. Ed counters that no demand letter was earlier sent to him, that the obligation is merely civil in character and that novation took place when Mr. Benjie accepted the partial payments. Discuss the criminal liability, if any, of Mr. Ed. ‘14-Q16

The wife of AAA predeceased his mother-in-law. AAA was accused of defrauding his mother-in-law under a criminal information for estafa, but the actual recital of facts of the offense charged therein, if proven, would constitute not only the crime of estafa, but also falsification of public document as a necessary means for committing estafa. AAA invokes the absolutory cause of relationship by affinity. Which statement is most accurate? ’12 – Q1 a. The relationship by affinity created between AAA and the blood relatives of his wife is dissolved by the death of his wife and the absolutory cause of relationship by affinity is therefore no longer available to AAA. b. The death of.spouse does not severe the relationship by affinity which is an absolutory cause available to AAA for estafa through falsification of public document. c. If AAA commits in a public document the act of falsification as a necessary means to commit estafa, the relationship by affinity still subsists as an absolutory cause for estafa which should be considered separately from the liability for falsification of public document because there is no specific penalty prescribed for the complex crime of estafa through falsification of public document.

A: Mr. Ed s liable for one count of estafa under Article 315 (2)(d) for the issuance of the first three checks because he issued them simultaneous with the transaction in order to defraud another. However, the two other checks are deemed to have been issued in payment of a preexisting obligatio, hence the same act could not have been the efficient

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers d.

Considering that under the given situation, the two (2) crimes of estafa and falsification of public document are not separate crimes but component crimes of the single complex crime of estafa and falsification of public document, the absolutory cause of relationship by affinity is not available to AAA.

nounces as fraudulent implies a purpose or design to hide facts which the seller is, in good faith, bound to disclose may generally be classified as a deceptive act due to its inherent capacity to deceive. Suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false representation. A seller, who failed to disclose the defect of the property sold to the buyer, is liable for other deceit under Article 318 of the Revised Penal Code (Guinhawa vs. People, G.R. No. 162822 August 25, 2005). Hence, “A” is the answer.

SUGGESTED ANSWER: d) Considering that under the given situation, the two (2) crimes of estafa and falsification of public document are not separate crimes but component crimes of the single complex crime of estafa and falsification of public document, the absolutory cause of relationship by affinity is not available to AAA. There are two views on whether the extinguishment of marriage by death of the spouse dissolves the relationship by affinity for purpose of absolutory cause. The first holds that relationship by affinity terminates with the dissolution of the marriage, while the second maintains that relationship continues even after death of the deceased spouse. The principle of pro reo calls for the adoption of the continuing affinity view because it is more favorable to the accused. However, the absolutory cause applies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification (Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010).

RR convinced WW to take a job in Taiwan, assuring her of a good salary and entitlement to a yearly vacation. WW paid to RR the processing fee for passport and visa, but no receipt was issued for the payment. WW was made to use the alien certificate of registration of another person with a Chinese name and instructed on how to use the Chinese name. The application of WW was rejected by the Taiwanese authorities. Cases were filed against RR for illegal recruitment and estafa. The case of illegal recruitment was dismissed. Is RR liable for estafa? ’12 - Q57 a) RR is liable for estafa with unfaithfulness or abuse of confidence. b) RR is liable for estafa by means of false pretenses. c) RR is not liable for estafa because WW participated in the illegal travel documents. d) RR can no longer be held liable for estafa because with the dismissal of the case against him for illegal recruitment, double jeopardy has already set in. SUGGESTED ANSWER: b) RR is liable for estafa by means of false pretenses. RR is liable for estafa by means of false pretenses. RR misrepresented and falsely pretended that she had the capacity to deploy WW for employment in Taiwan. The misinterpretation was made prior to the payment for processing fee. It was RR’s misinterpretation and false pretenses that induced WW to part with her money. As a result of RR’s false pretenses and misinterpretations, WW suffered damages as the promised employment abroad never materialized and the money she paid was never recovered (People vs. Sy, G.R. No. 183879, April 14, 2010). The fact that WW actively participated in the processing of the illegal travel documents will not exculpate RR from liability. WW was a hapless victim of circumstance s and of frau committed by RR. She was forced to take part in the processing of the falsified travel documents because she had already paid the processing fee. RR committed deceit by representing that she could secure WW with employment in Taiwan, the primary consideration that induced the latter to part with her money. WW was led to believe by RR that she possessed the power and qualifications to provide WW with employment abroad, when, in fact, she was not licensed or authorized to do so. Deceived, WW parted with her money and delivered the same to RR (People vs. Sy, supra). Illegal recruitment and estafa cases may be filed simultaneously or separately. The filing of charges for illegal recruitment does not bar the filing of estafa, and vice versa. RR’s acquittal in the illegal recruitment case does not prove that she is not guilty of estafa. Illegal recruitment and estafa are entirely different offenses and neither once necessarily includes or is necessarily included in the other. A person who is convicted of illegal recruitment may, in addition, be convicted of estafa. In the same manner, a person acquitted of illegal recruitment may be held liable for estafa. Double jeopardy will not set in because illegal recruitment is malum prohibitum, in which there is no necessity to prove criminal intent, whereas estafa is malum in se, in the prosecution of which, proff of criminal intent is necessary (People vs. Sy, supra).

What crime is committed by one who defrauds another by taking undue advantage of the signature of the offended party in a blank check and by writing the payee and amount of the check to the prejudice of the offended party? ’12 – Q17 a) estafa with unfaithfulness or abuse of confidence; b) estafa by false pretense; c) estafa through fraudulent means; d) estafa by other deceits. SUGGESTED ANSWER: a) estafa with unfaithfulness or abuse of confidence; Estafa is committed by a person who shall defraud another with unfaithfulness or abuse of confidence by taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person (Article 315 [1] [c] of the Revised Penal Code). Who among the following is liable for estafa? ’12 – Q22 a) The seller of a laptop computer who failed to inform the buyer that the laptop had a defect. b) The person who ran away with a cell phone which was handed to him upon his pretense that he had to make an emergency call. c) The person who assured he will pay interest on the amount but failed to do so as promised. d) The son who induced his father to buy from him a land which the son is no longer the owner. SUGGESTED ANSWER: b) The person who ran away with a cell phone which was handed to him upon his pretense that he had to make an emergency call. The person, who ran away with a cellphone which was handed to him upon his pretence that he had to make an emergency call, is liable for estafa through misappropriation. ALTERNATIVE ANSWER: a) The seller of a laptop computer who failed to inform the buyer that the laptop had a defect. Misappropriation of personal property in possession of the accused may constitute estafa or theft depending upon the nature of possession. If his possession of the property is physical or de facto, misappropriation thereof is constitutive of theft. If the possession is juridical or legal, misappropriation thereof is estafa through misappropriation (People vs Mirto, G.R. No. 139479, October 19, 2011). Thus, the person, who ran away with a cellphone which was handed to him upon his pretence that he had to make an emergency call, is liable for theft since the possession of offender is merely physical. Hence, “B” is not the answer. Fraud or deceit may be committed by omission. It is true that mere silence is not in itself concealment. Concealment which the law de-

Which of the following acts does not constitute estafa or other forms of swindling? ’12 - Q65 a) When a person mortgages a real property by pretending to be the owner thereof. b) When a person disposes of the real property knowing it to be encumbered. c) When a person wrongfully takes real property from its lawful possessor to the prejudice of the latter. d) When a person mortgages real property while being a surety given in a civil action without express authority from the court. SUGGESTED ANSWER:

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers c) When a person wrongfully takes real property from its lawful possessor to the prejudice of the latter. Swindling under Article 316 of the Revised Penal Code is committed by the owner of any “personal property” who shall wrongfully take it from its lawful possessor, to the prejudice of the latter. In the facts giving in choice letter “c”, what is involved is a real property.

under the same P.D. No. 1689 with a lower penalty than syndicated estafa. Dennis leased his apartment to Myla for P10,000 per month. Myla failed to pay the rent for 3 months. Gabriel, the son of Dennis, prepared a letter falsely alleging that his father had authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the payment. ’08 – Q9 1. Did Gabriel commit a crime? ’08 – Q9-1

ATERNATIVE ANSWER: b) When a person disposes of the real property knowing it to be encumbered. Swindling under Article 316 (a) of RPC is committed by any person who, knowingly that the real property is encumbered, shall dispose of the same. The law was taken from Article 455 of the Spanish Penal Code. However, the words “como libre” in the Spanish Penal Code, which means “free from encumbrance” do not appear in the English text of RPS, nonetheless, the same are deemed incorporated in the RPC (In sum, the offender must dispose the real property free from encumbrance despite knowledge that is encumbered). The gravamen of the crime is the disposition of legally encumbered real property by the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must make an express representation in the deed of conveyance that the property sold or disposed of is free from any encumbrance (Naya vs. Abing, G.R. No. 146770, February 27, 2003). A person, who disposes real property knowing it to be encumbered, is not liable for swindling under Article 316 since the elements of “express representation of no encumbrance” is not present. Hence, “b” is the answer.

YES, Gabriel committed the crime of Estafa under Article 315, Par. 2(a), RPC by fraudulent acts executed prior to or simultaneous with the fraud or false pretending to possess agency. Myla paid the money because she relied upon the demand letter prepared by Gabriel with the false allegation that he was authorized to collect rentals. 2.

Can Gabriel invoke his relationship with Dennis to avoid criminal liability? ’08 – Q9-2

NO. Gabriel cannot invoke Article 332, RPC (Persons exempt from criminal liability). It is Myla, not the father Dennis, who is the offended party under Article 315, Par. 2(a), RPC (Luis B. Reyes, The Revised Penal Code, Volume I, p. 853, 16th Ed., [2006].) Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill was earning less than it actually was writing in a “talaan” or ledger a figure lower than what was collected and paid by their customers. Fe then pocketed the difference. What crime/s did Fe commit, if any? ’07 – Q8

There is violation of Art. 316, RPC (Other forms of Swindling) where: ’11 – Q15 (A) the owner of property sells a property and subsequently rescinds the sale. (B) the real property subject of the sale does not exist. (C) the property was mortgaged for a usurious contract of loan. (D) the owner disposes of his encumbered real property as if it is free from encumbrances.

If the “talaan” or ledger which Fe made to show a falsehood was a private document, the only crime that Fe committed was estafa through abuse of confidence or unfaithfulness. Criminal liability for falsification of a private document does not arise without damage or at least proof of intent to cause damage. It cannot co-exist with the crime of estafa which also essentially requires damage or at least proof of intent to cause damage. Since the “talaan” was falsified to cover-up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage attends the falsification, it will be the same damage or intent to cause damage that will attend the estafa. If such “talaan” or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone, if done with intent to pervert the truth, would bring about the criminal liability for falsification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed, namely: (1) estafa; and (2) falsification of a commercial document. The falsification should not be complexed with the estafa since it was not committed as a necessary means to commit the estafa but rather resorted to, to conceal or hide the misappropriation of the amount she pocketed.

X draws a check upon request of Y, the payee, who told X that he would merely show the check to his creditor to gain more time to pay his account. The check bounced upon presentation by the creditor. Under the circumstances, who can be prosecuted for estafa based on the dishonored check? ’11 – Q29 (A) Y as the one who negotiated the check contrary to the agreement (B) X as the drawer of the check (C) Both X and Y based on conspiracy (D) None Removing, concealing or destroying documents to defraud another constitutes the crime of estafa if committed by: ’11 – Q36 (A) any public officer. (B) a public officer officially entrusted with the document. (C) private individuals who executed the same. (D) private individuals.

Alternative Answer:

The president, treasurer and secretary of ABC Corp. were charged with syndicated estafa alleging that they defrauded Virna, Lana, Deborah and several other persons by making it appear that were in a legitimate business of foreign exchange trading under ABC Corp. knowing full well that ABC Corp. is not licensed nor authorized to engage in foreign exchange trading; in inducing the complainants to give and deliver to them at least P20,00,000 on said manifestations and representations; and that such manifestations and representations resulted to the damage and prejudice of the complainants and other persons. Will the case for syndicated estafa prosper? ’10 – Q16

The crimes committed by Fe are theft and falsification of private document because Fe’s possession of the proceeds of the rice mill was only physical, not juridical possession, and having committed the crimes with grave abuse of confidence, it is qualified theft. The falsification is a separate crime from the theft because it was not committed as a necessary means to commit the theft but resorted only to hide or conceal the unlawful taking. DD purchased a television set for P50,000.00 with the use of a counterfeit credit card. The owner of the establishment had no inkling that the credit card used by DD was counterfeit. What crime or crimes did DD commit? '05 – Q4(2)

NO, a case for syndicated estafa will not prosper because a syndicate for such crime under Presidential Decree No. 1689 must be comprised of five (5) persons or more persons committing the estafa or other forms of swindling defined in Articles 315 and 316 of the Revised Penal Code; whereas the case only involved three (3) accused who are alleged to have conspired in the commission of the swindling. But because the amount defrauded exceeds P100,000, the case is still

DD committed estafa and violated R.A. No. 8484, referred to as Access Devices Regulation Act of 1998. Estafa under Article 315(2)(a) of the RPC is committed because he defrauded the owner of the establishment by falsely pretending to possess credit with the credit card company when he used a fake credit card.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers DD also violated Section 9(a) of R.A. No. 8484 which punishes, among others, the act of using a counterfeit access device.

the jewelry does not make her criminally liable for estafa (Lim v. Court of Appeals, 271 SCRA 12 [1997].)

Alternative Answer:

Is there such a crime as estafa through negligence? '99 – Q14a

DD committed a complex crime of estafa thru falsification of a commercial document. As a user of a false or fake credit card, a commercial document, DD is presumed to have falsified the same. Hence, he does not only commit the crime of using a false document but also the crime of falsification. Since he used such false or fake credit card to defraud the owner of the store from whom he purchased the television set, the crime of swindling or estafa was perpetrated thru falsification of said commercial document. He, therefore, committed the complex crime of estafa thru falsification of a commercial document.

There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in allowing another to take advantage of or benefit from the entrusted chattel cannot constitute estafa (People v. Nepomuceno, CA 46 O.G. 6135 [1949].) Divina, is the owner of a 500-square meter residential lot in Makati City covered by TCT No. 1998. As her son needed money for his trip abroad, Divina mortgaged her lot to her neighbor Dino for P1,000,000. Later Divina sold the same lot to Angel for P2,000,000. In the Deed of Sale, she expressly stated that the property is free from any lien or encumbrance. What crime, if any, did Divina commit? '98 – Q12

A and B agreed to meet at the latter's house to discuss B's financial problems. On his way, one of A's car tires blew up. Before A left following the meeting, he asked B to lend him (A) money to buy a new spare tire. B had temporarily exhausted his bank deposits, leaving a zero balance. Anticipating, however, a replenishment of his account soon, B issued A a post-dated check with which A negotiated for a new tire. When presented, the check bounced for lack of funds. The tire company filed a criminal case against A and B. What would be the criminal liability, if any, of each of the two accused? '03 – Q12

Divina committed estafa or swindling under Article 316, par. 2 of the RPC because, knowing that the real property being sold is encumbered, she still made a misrepresentation in the Deed of Sale that the same is free from any lien or encumbrance. There is thus a deceit or fraud causing damage to the buyer of the lot. The accused opened a saving account with Bank A with an initial deposit of P2,000. A few days later, he deposited in the savings account a Bank B check for P 10,000 drawn and endorsed purportedly by C. Ten days later, he withdrew P 10,000 from his savings account. C complained to Bank B when the check was deducted from his account. Two days thereafter, the accused deposited another Bank B check of P 10,000 signed and endorsed allegedly by C. A week later, the accused went to Bank A to withdraw P10,000. While withdrawing the amount, he was arrested. Convicted under two informations of estafa and attempted estafa both through falsification of commercial documents, he set up the defenses that, except for the showing that the signature of C had been forged, no further evidence was presented to establish (a) that he was the forger of the signature of C nor (b), that as to the second charge C suffered any damage. Rule on the defense. ’97 – Q13

A who negotiated the unfunded check of B in buying a new tire for his car may only be prosecuted for estafa if he was aware at the time of such negotiation that the check has no sufficient funds in the drawee bank; otherwise, he is not criminally liable. B who accommodated A with his check may nevertheless be prosecuted under B.P. 22 for having issued the check, knowing at the time of issuance that it has no funds in the bank and that A will negotiate it to buy a new tire, i.e., for value. B may not be prosecuted for estafa because the facts indicate that he is not actuated by intent to defraud in issuing the check which A negotiated. Obviously, B issued the post-dated check only to help A: criminal intent or dolo is absent. A sold a washing machine to B on credit, with the understanding that B could return the appliance within 2 weeks if, after testing the same, B decided not to buy it. 2 weeks lapsed without B returning the appliance. A found out that B had sold the washing machine to a 3rd party. Is B liable for estafa? ’02 – Q12

The defense is not tenable; (a) the possessor of a falsified document is presumed to be the author of the falsification (People v. Sendaydiego, 81 SCRA 120; Koh Tiek v. People, December 21, 1990); (b) In estafa, a mere disturbance of property rights, even if temporary, would be sufficient to, cause damage. Moreover, in a crime of falsification of a commercial document, damage or intent to cause damage is not necessary because the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed.

NO, B is not liable for estafa because he is not just an entrustee of the washing machine which he sold; he is the owner thereof by virtue of the sale of the washing machine to him. The sale being on credit, B as buyer is only liable for the unpaid price of the washing machine; his obligation is only a civil obligation. There is no felonious misappropriation that could constitute estafa. Aurelia introduced Rosa to Victoria, a dealer in jewelry who does business in Timog, QC. Rosa, a resident of Cebu City, agreed to sell a diamond ring and bracelet to Victoria on a commission basis, on condition that, if these items can not be sold, they may be returned to Victoria forthwith. Unable to sell the ring and bracelet, Rosa delivered both items to Aurelia in Cebu City with the understanding that Aurelia shall, in turn, return the items to Victoria in Timog, QC. Aurelia dutifully returned the bracelet to Victoria but sold the ring, kept the cash proceeds thereof to herself, and issued a check to Victoria which bounced. Victoria sued Rosa for estafa under Article 315, RPC, Victoria insisting that delivery to a third person of the thing held in trust is not a defense in estafa. Is Rosa criminally liable for estafa under the circumstances? '99 – Q14b

On March 31, 1995, Orpheus Financing Corp. (OFC) received from Maricar the sum of P500,000 as money market placement for 60 days at 15% interest, and the President of OFC issued a check covering the amount including the interest due thereon, post-dated May 30, 1995. On the maturity date, however, OFC failed to deliver back Maricar's money placement with the corresponding interest earned, notwithstanding repeated demands upon said Corporation to comply with its commitment. Did the President of OFC incur any criminal liability for estafa for reason of the nonpayment of the money market placement? '96 – Q10 NO, the President of the financing corporation does not incur criminal liability for estafa because a money market transaction partakes of the nature of a loan, such that non-payment thereof would not give rise to estafa through misappropriation or conversion. In money market placement, there is transfer of ownership of the money to be invested and therefore the liability for its return is civil in nature (Perez v. Court of Appeals, 127 SCRA 636; Sebreno v. Court of Appeals, G.R. 84096, 26 January 1995).

NO, Rosa cannot be held criminally liable for estafa. Although she received the jewelry from Victoria under an obligation to return the same or deliver the proceeds thereof, she did not misappropriate it. In fact, she gave them to Aurelia specifically to be returned to Victoria. The misappropriation was done by Aurelia, and absent the showing of any conspiracy between Aurelia and Rosa, the latter cannot be held criminally liable for Amelia's acts. Furthermore, as explained above, Rosa's negligence which may have allowed Aurelia to misappropriate

Simultaneous Filing of Estafa and Illegal Recruitment

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers Dora gave Elen several pieces of jewelry for sale on commission basis. They agreed that Elen would remit the proceeds of the sale and return the unsold items to Dora within sixty days. The period expired without Elen remitting the proceeds of the sale or returning the pieces of jewelry. Dora demanded by phone that Elen turn over the proceeds of the sale and return the unsold pieces of jewelry. Elen promised to do so the following day. El en still failed to make good on her promise but instead issued post-dated checks. Thereafter, Dora made several more demands, the last of which was in writing, but they were all unheeded. When the checks were deposited in Dora's bank account, the checks were returned unpaid for insufficient funds. Elen was charged with estafa and violation of Batas Pambansa Big. 22. Will the charges against Elen prosper? Explain. (4%) ’15-Q13

recruitment is also committed (People v. Chua, G. R. No. 187051, September 13, 2012).

b) Will your answer still be the same, assuming that the promise to deploy for employment abroad was made by Dela to Celia, Digna and Emma, in addition to Nita, and from whom Dela also collected the same amount of processing fee? Explain. (2.5%) ’15Q14

Yes. Dela shall be held liable for both Estafa under Par2(a) of Art. 315 of the RPC and Illegal Recruitment, but in large-scale. Illegal recruitment is deemed committed in large-scale if committed against 3 or more persons individually or as a group. Since there are at least 3 victims in this case, Cela, Digna, Emma, and Nita, Dela shall be held liable for large scale illegal recruitment under the earlier cited provisions. (People v. Tolentino, GR No 208686, 01 July 2015).

Answer: Art. 315, par1(b) of the RPC punishes Estafa through Misappropriation. To prove the foregoing crime, the prosecution must establish the following elements: (1) the offender’s receipt of money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return the same; (2) misappropriation or conversion by the offender of the money or property; (3) the misappropriation, conversion or denial is to the prejudice of another; and (4) demand by the offended party that the offender return the money or property received.

AA misrepresented to the complainant that he had the power, influence, authority and business to obtain overseas employment upon payment of placement fee. AA duly collected the placement fee from complainant. As per certification of the Philippine Overseas Employment Administration, AA did not possess any authority or license for overseas employment. Is it proper to file two (2) separate Information for illegal recruitment under the Labor Code and for estafa by means of deceit? ’12 – Q8 a. No. The filing of two (2) separate Informations for illegal recruitment under the Labor Code and for estafa by means of deceit for the same act is violative of the principle against double jeopardy. b. No. One Information for a complex crime of illegal recruitment with estafa by means of deceit should be filed, instead of two (2) separate Informations. c. No. A person convicted of illegal recruitment under the Labor Code may not, for the same act, be separately convicted of estafa by means of deceit. d. Yes. A person convicted of illegal recruitment under the Labor Code may, for the same act, be separately convicted of estafa by means of deceit. SUGGESTED ANSWER: d) Yes. A person convicted of illegal recruitment under the Labor Code may, for the same act, be separately convicted of estafa by means of deceit. It is well-settled that a person who has committed illegal recruitment may be charged and convicted separately of the crime of illegal recruitment under RA No. 8042 and estafa. The reason for the rule is that the crime f illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for convcition, while the crime of estafa is malum in se where the criminal intent of the accused is necessary for conviction. In other words, a person convicted under the RA No. 8042 may also be convicted of offenses punishable by other laws (People vs. Logan, G.R. No. 135030-33, July 20, 2001). Moreover, although the two crimes may arise from the same facts, they are not the same. Not all acts, which constitute estafa, necessarily establish illegal recruitment, for estafa is wider in scope and covers deceits whether or not related to recruitment activities. More importantly, the element of damage, which is essential in estafa cases, is immaterial in illegal recruitment (People vs. Turda, G.R. No. 97044, July 6, 1994).

In the case at hand, the pieces of jewelry were received by Elen from Dora, an act which transferred the juridicial possession of the former. To have juridicial possessions means possession which gives the transferee a right over the thing which the transferee may set up against the owner. Generally, demand for the return of the thing delivered in trust in necessary before an accused is convicted of Estafa. However, if there is an agreed period of for the return of the thing received in trust and the accused failed to return it within the agreed period, demand is unnecessary. Failure to return the thing within the agreed period consummates the crime of Estafa, i.e. the misappropriation of the thing received in trust. In this case, Dora and Elen agreed on a period, within 60 days, for the delivery of the sale and return of the unsold items to Dora. Elen’s failure to return within 60 days is a presumption of misappropriation of the jewelry. Thus, there would be no more need to present any act of misappropriation. Dela convinced Nita to work in Taiwan, promising Nita that she would take care of the processing of the necessary documents. Dela collected P120,000.00 from Nita purportedly for the processing of her papers. Upon receipt of the money, Nita was made to accomplish certain forms and was told that she would be deployed to Taiwan within one month. After one month, Nita followed up on her application. Dela made some excuses and told Nita that the deployment would be delayed. Another month passed and Dela made other excuses which made Nita suspicious. Nita later discovered that Dela was not licensed to recruit. Nita confronted Dela and demanded the return of her money. Dela promised to return the same in a week's time. a) A week later, Dela was nowhere to be found. What crime(s) did Dela commit? Explain. (2.5%)

Answer: Dela defrauded Nita by leading her to believe that she has the capacity to send her to Taiwan for work, even though she does not have license or authority for the purpose. Such misrepresentation came before Nita gave Dela P120,000 for the processing of her papers. Clearly Nita would not have parted with her money were it not found for such enticement by Dela. As a consequence of Dela’s false pretenses, Nita suffered damages as the promised employment abroad never materialized and the money she paid was never recovered. Thus, the crime of estafa through falsification of public documents is committed. Since Dela has no license to recruit, the crime of illegal

RR represented to AA, BB, CC and DD that she could send them to London to work there as sales ladies and waitresses. She collected and received from them various amounts of money for recruitment and placement fees totalling P400,000. After their dates of departure were postponed several times, the four prospects got suspicious and went to POEA. There they found

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers out that RR was not authorized nor licensed to recruit workers for employment abroad. They sought refund to no avail. Is RR guilty of any grave offense? '04 – Q1a

1.

What crime was committed by CD? '04 – Q6-1

The crime committed by CD is arson under P.D. No. 1613 (the new Arson Law) which punishes any person who burns or sets fire to the property of another (Section 1 of P.D. No. 1613).

YES. RR is guilty of a grave offense, having engaged in illegal recruitment constituting the offense of economic sabotage which is punishable with life imprisonment and a fine of P100.000.00. ECONOMIC SABOTAGE is an offense defined in 38(b) of the Labor Code, as amended by P.D. No. 2018, which is incurred when the illegal recruitment is carried out in large scale or by a syndicate. It is in a large scale when there are three or more aggrieved parties, individually or as a group. And it is committed by a syndicate when three or more persons conspire or cooperate with one another in carrying out the illegal transaction, scheme or activity.

2.

Is CD criminally liable? '04 – Q6-2

CD is criminally liable although he is the stepfather of FEL whose property he burnt, because such relationship is not exempting from criminal liability in the crime of arson but only in crimes of theft, swindling or estafa, and malicious mischief (Article 332, RPC). The provision (Article 323) of the Code to the effect that burning property of small value should be punished as malicious mischief has long been repealed by P.D. No. 1613; hence, there is no more legal basis to consider burning property of small value as malicious mischief.

Arson Senio planned to burn Bal' s house. One evening, during a drinking spree at his house, Senio told his friends what he intended to do and even showed them the gasoline in cans that he would use for the purpose. Carlo, a common friend of Senio and Bal, was present at the drinking spree. He was still sober when Senio told them his plans. Before going home, Carlo warned Bal that Senio would burn his house and had already bought gasoline that would be used for the purpose. Bal reported the matter to the police authorities. Meanwhile, Senio went to Bal' s house and proceeded to pour gasoline around the walls of the house and it was at that point when he was caught by the police. What crime did Senio commit, if any? Explain. (3%) ’15-Q20

One early evening, there was a fight between Eddie Gutierrez and Mario Cortez. Later that evening, at about 11 PM, Eddie passed by the house of Mario carrying a plastic bag containing gasoline, threw the bag at the house of Mario who was inside the house watching television, and then lit it. The front wall of the house started blazing and some neighbors yelled and shouted. Forthwith, Mario poured water on the burning portion of the house. Neighbors also rushed in to help put the fire under control before any great damage could be inflicted and before the flames have extensively spread. Only a portion of the house was burned. Discuss Eddie's liability. '00 – Q18c Eddie is liable for destructive arson in the consummated stage. It is destructive arson because fire was resorted to in destroying the house of Mario which is an inhabited house or dwelling. The arson is consummated because the house was in fact already burned although not totally. In arson, it is not required that the premises be totally burned for the crime to be consummated. It is enough that the premises suffer destruction by burning.

ANSWER: Senio is liable for attempted arson. He manifested before his intention to burn the house of Bal to his friends. He then performed the act of pouring gasoline around the walls of the house to execute his criminal design to commit arson. This is not just a preparatory act, because it already ceased to be equivocal and revealed a clear intention to burn the house. In sum, he already commenced the commission of the crime of arson directly by overt acts but he did not perform all acts to execute his criminal design to commit arson by setting the house on fire due to a cause other than his spontaneous desistance, and that is, having been caught by the police.

Tata owns a 3-storey building located at No. 3 Herran Street. Paco, Manila. She wanted to construct a new building but had no money to finance the construction. So, she insured the building for P3 million. She then urged Yoboy and Yongsi, for monetary consideration, to burn her building so she could collect the insurance proceeds. Yoboy and Yongsi burned the said building resulting to its total loss. '94 – Q6 1. What crime did Tata, Yoboy and Yongsi-commit? '94 – Q6-1

With intent to cause damage, AAA deliberately set fire upon the two-storey residential house of his employer, mostly made of wooden materials. The blaze spread and gutted down seven neighboring houses. On the occasion of the fire, six (6) persons sustained burn injuries which were the direct cause of their death. What crime was committed by AAA? ’12 - Q74 a) AAA committed the complex crime of arson with multiple homicide. b) AAA committed arson and multiple homicide. c) AAA committed simple arson. d) AAA committed arson and multiple murder. SUGGESTED ANSWER: c) AAA committed simple arson. If the main objective of the offender is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed (People vs. Baluntong, G.R. No. 182601, March 15, 2010l People vs. Cedenio, G.R. No. 93485, June 27, 1994).

Tata, Yoboy and Yongsi committed the crime of destructive arson because they collectively caused the destruction of property by means of fire under the circumstances which exposed to danger the life or property of others (Article 320, par. 5, RPC, as amended by R.A. No. 7659). 2.

What is their respective criminal liability? '94 – Q6-2

Tata is a principal by inducement because she directly induced Yoboy and Yongsi, for a price or monetary consideration, to commit arson which the latter would not have committed were it not for such reason. Yoboy and Yongsi are principals by direct participation (Article 17, paragraphs 1 and 2, RPC). ALTERNATIVE ANSWER:

Dagami concealed Bugna’s body and the fact that he killed him by setting Bugna’s house on fire. What crime or crimes did Dagami commit? ’11 – Q37 (A) Murder, the arson being absorbed already (B) Separate crimes of murder and arson (C) Arson, the homicide being absorbed already (D) Arson with murder as a compound crime

The crime could only be malicious mischief as the problem does not mention that he is carrying a match or a lighter. It was not shown that Senio was about to light a match or ignite a lighter to set the house on fire.

CD is the stepfather of FEL. One day, CD got very mad at FEL for failing in his college courses. In his fury, CD got the leather suitcase of FEL and burned it together with all its contents. '04 – Q6

DD, intending to kill EE, peppered the latter's bedroom with bullets, but since the intended victim was not home at that time, no harm came to him. What crime is committed? ’12 - Q66

Malicious Mischief

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers a) DD committed the crime of attempted murder. b) DD committed the crime of attempted homicide. c) DD committed the crime of impossible crime. d) DD committed the crime of malicious mischief. SUGGESTED ANSWER: d) DD committed the crime of malicious mischief. In Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992– Outside the house of the victim, accused with intent to kill fired at the bedroom, where the victim is supposed to be sleeping. No one was in the room when the accused fired the shots. No one was hit by the gun fire. The accused were convicted of impossible crime. Accused shoot the place where he thought his victim was not present in said place and thus, the accused failed to accomplish their end due to its factual impossibility.

his wife with Adultery. The fact that Wendy was later discovered by Hector to be born male who simply underwent sexual re-assignment later in life, is immaterial to the charge of Adultery considering that the marriage between the same sex is considered valid in the USA where they were married. A, a married woman, had sexual intercourse with a man who was not her husband. The man did not know she was married. What crime, if any, did each of them commit? '02 – Q10a A, the married woman, committed the crime of adultery under Article 333 of the RPC, as amended, for having sexual intercourse with a man not her husband while her marriage is still subsisting. But the man who had carnal knowledge of her, not knowing her to be married, shall not be liable for adultery.

What crime is committed by a utility worker in government who destroys office files as an act of revenge against his supervisor? ’12 - Q75 a) The utility worker commits infidelity in the custody of papers. b) The utility worker commits malicious mischief. c) The utility worker commits estafa by removing, concealing or destroying office files. d) The utility worker commits crime involving destruction. SUGGESTED ANSWER: b) The utility worker commits malicious mischief. The crime of infidelity in the custody of papers under Article 226 of the Revised Penal Code is not committed since the files are not officially entrusted to the government utility worker by reason of his office. Official custody of the paper is an element of this crime. Estafa by destroying office files under Article 315 (3) (c) is not committed because intent to defraud another, which is an element of this crime, is lacking. The crime committed by the utility worker is malicious mischief.

Concubinage Suspecting that her husband of twenty years was having an affair, Leilanie hired a private investigator to spy on him. After two weeks, the private investigator showed a video of her husband having sexual intercourse with another woman in a room of a fivestar hotel. Based on what she saw in the video, Leilanie accused her husband of concubinage. Will the case of concubinage prosper? ’10 – Q15 NO, a case for concubinage will not prosper because said crime may be committed only by a husband in three (3) ways, viz: 1. By keeping a mistress in the conjugal dwelling; or 2. By having sexual intercourse with a woman not his wife under scandalous circumstances; or 3. By cohabiting with a woman not his wife in any other place (Article 334, RPC.) The facts of the case given do not constitute any of the situations above-stated

X and his step-father have a long-standing enmity. One day, irked by an argument with his step-father, X smashed the windshield of his step-father’s brand new Audi sports car. X is liable for: ’11 - 59 (A) malicious mischief. (B) malicious mischief with the alternative mitigating circumstance of relationship. (C) malicious mischief with the alternative aggravating circumstance of relationship. (D) the civil damage he caused.

A is married. He has a paramour with whom he has sexual relations on a more or less regular bass. They meet at least once a week in hotels, motels and other places where they can be alone. Is A guilty of any crime? '02 – Q10b A is guilty of the crime of concubinage by having sexual intercourse under scandalous circumstances, with a woman who is not his wife. Having sexual relations on a more or less regular basis in hotels, motels and other places may be considered a scandalous circumstance that offends public conscience, giving rise to criticism and general protest such acts being imprudent and wanton and setting a bad example (People v. Santos, 86 SCRA 705 [1978].)

Crimes Against Chastity Adultery Filipino citizens Hector and Wendy were married in New York, and have been living happily in Manila for the last three years. Hector was removing junk from his basement when he came across an unlabeled recordable cd. He put it in his computer's DVD drive to check its contents. To his surprise, he saw a video of Wendy and another man Ariel, in the act of sexual intercourse in the master's bedroom of his house. Angered by what he saw, he filed a complaint for adultery against Wendy and Ariel. During the course of the trial, and again to the surprise of Hector, it was proved that Wendy was born male and underwent sex reassignment later in life.

Alternative Answer: A is not guilty of any crime because a married man does not incur the crime of concubinage by merely having a paramour, unless under scandalous circumstances, or he keeps her in the conjugal dwelling as a mistress, or cohabits with her in any other place. His weekly meetings with his paramour do not per se constitute scandalous circumstance. Abe, married to Liza, contracted another marriage with Connie in Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as husband and wife in the hometown of Abe in Calamba, Laguna. '94 – Q12 1. Can Abe be prosecuted for bigamy? '94 – Q12-1

a) May Hector's charge of adultery against Wendy and Ariel prosper? Explain. (3%) ’15-Q21a ANSWER: Yes,

Hector’s charge of Adultery will prosper. NO, Abe may not be prosecuted for bigamy since the bigamous marriage was contracted or solemnized in Singapore. Hence, such violation is not one of those where the RPC, under Article 2 thereof, may be applied extra-territorially. The general rule on territoriality of criminal law governs the situation.

Adultery has the following elements: (1) the woman is married; (2) she has sexual intercourse with a man not her husband; (3) as regards the man with whom she has sexual intercourse, he must know her to be married.

2.

In the case at hand, the discover by Hector of the video of Wendy having sexual intercourse with another man, Ariel, is sufficient to charge

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If not, can he be prosecuted for any other crime? '94 – Q12-2

The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers offensive to Evelyn, may be viewed as part of a dirty dancing. Lewd intent cannot be simply presumed from the act of dirty dancing. The fact that the act was perpetrated in a public place and with an audience negates lewd designs or lascivious intent, which is essential in the crime of acts of lasciviousness.

YES. Abe, together with Connie, may be prosecuted for concubinage under Article 334 of the RPC for having cohabited as husband and wife. But concubinage being a private crime requires the sworn complaint of Liza, the offended spouse in accordance with Rule 110 of the Revised Rules on Criminal Procedure.

2. Acts of Lasciviousness Braulio invited Lulu, his I I-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%) ’16 – Q17

Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? ’09 – Q18-2

The crime would be then acts of lasciviousness. That the music had already stopped, puts an end to any pretense of dancing by Leoncio. His continued dirty acts absent the dancing as there was no music anymore is patently lewd and lascivious. More so, Evelyn protested Leoncio’s lewd acts in the course of dancing. So where the dance ended, Leoncio’s continued dirty acts cannot be veiled as still part of the dancing. Eduardo Quintos, a widower for the past 10 years, felt that his retirement at the age of 70 gave him the opportunity to engage in his favorite pastime — voyeurism. If not using his high-powered binoculars to peep at his neighbor's homes and domestic activities, his second choice was to follow sweet young girls. One day, he trailed a teenage girl up to the LRT station at EDSA-Buendia. While ascending the stairs, he stayed one step behind her and in a moment of bravado, placed his hand on her left hip and gently massaged it. She screamed and shouted for help. Eduardo was arrested and charged with acts of lasciviousness. Is the designation of the crime correct? '06 – Q9

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, 11 December 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, 8 October 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. Optana, G.R. No. 133922,12 February 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, 26 April 2005). Under Section 5 (b) 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 lasciviousness) 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.

NO, the designation of the crime charged is not correct because the overt act committed by Eduardo still falls short of the crime of acts of lasciviousness. The nature of the act done does not manifest sexual desire. It is more appropriate to consider such overt act as mere annoyance or vexation, constituting a crime of light coercion, commonly referred to as unjust vexation. The Revised Penal Code favors a milder criminal responsibility. Another Suggested Answer: Considering Eduardo’s voyeurism and propensity for lewdness, he may be charged for acts of lasciviousness as his criminal intent in doing the act is characterized by lewd desire.

A widower of ten years, septuagenarian Canuto felt that he had a license to engage in voyeurism. While going up the escalator in a shopping mall, he stayed a step behind a mini-skirted young damsel and in a moment of excitement, put his hand on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. What charge/s, if any, may he be held responsible for? ’10 – Q7

Another Suggested Answer: NO, the designation of the crime of acts of lasciviousness is not correct. The crime committed is Unjust Vexation. Unjust vexation includes any human conduct which, although not productive of some physical or material harm, unjustly annoys, irritate, vex, torment or distress the mind of an innocent person. Eduardo has indeed committed the crime of unjust vexation when he placed his hand on the hip of a teenage girl and gently massaged it.

Canuto may be held liable only for the milder crime of “unjust vexation” which is a form of light coercion under Article 287 of the Revised Penal Code, instead of the crime of acts of lasciviousness although the offender is known for his voyeurism. Our Revised Penal Code inclines towards milder criminal responsibility, consistent with the presumption of innocence under our fundamental law and the rule of pro reo permeating our system of applying penal laws. Holding the hip of a person is not per se lascivious but undoubtedly annoyed, irritated, and vexed the young offended party. The attitude to prosecute the offender for the milder crime of unjust vexation may be proper considering his age and civil status.

Alternative Answer: The crime should be Other Acts of Child Abuse under Section 10 of RA. No. 7610, par. b of Section 3, that refers to child abuse committed by any act, deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. In relation thereto, Section 10 provides criminal liability for other acts of child abuse, cruelty or exploitation, or for other conditions prejudicial to the child's development. The reaction of the victim, screaming for help upon the occurrence of the touching indicates that she perceived her dignity was being debased or violated.

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evely’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her. ? ’09 – Q18 1. What crime or crimes, if any, did Leoncio commit? ? ’09 – Q18-1

Mick, a gay foreigner, fondled and played with the private part of Egay, an 11 year-old boy, who enjoyed it and gladly received the P100.00 given him by the foreigner. ’93 – Q15 1. What crime, if any was committed by the foreigner? ’93 – Q15-1

Leoncio committed the crime of unjust vexation only because the act was done in the course of dancing. The act of dipping his private parts in Evelyn’s buttocks during a very seductive dance, although

Acts of Lasciviousness under the circumstances of rape (Article 336, RPC and R.A. No. 7610)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 2.

If the act was committed on Cindy, an 11 year-old girl, would your answer be the same? ’93 – Q15-2

virtuous woman of good reputation, since the essence of the crime is not the injury to the woman but the outrage and alarm to her family (Valdepeñas v. People, 16 SCRA 871 [1966].)

YES, acts of lasciviousness is committed irrespective of sex (Article 336, RPC.)

Alternative Answer:

Qualified Seduction

A committed “Child Abuse” under Rep. Act No. 7610. As defined in said law, “child abuse” includes sexual abuse or any act which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being, whose age is below eighteen (18) years.

What are the three (3) classes of offenders in the crime of qualified seduction? Give an example of each. ’07 – Q5b The three (3) classes of offenders in the crime of qualified seduction are: 1. Those who exercise moral influence over the victim, such as a priest who acts as spiritual adviser of the victim, or a teacher in the school where the victim is enrolled; 2. A brother or ascendant by consanguinity of the victim, such as her uncle; and 3. Those who are regarded as “domestic” in relation the victim, enjoying the confidence and intimacy shared by members of the same household, such as household helpers and boarders living under the same roof and with same household as the victim.

Crimes Against the Civil Status of Persons Bigamy What are the elements of the crime of bigamy? (5%) ’12 – QIa SUGGESTED ANSWER: In Marbella-Bobis v. Bobis (G.R. No. 138509, 31 July 200), the Supreme Court laid down the elements of bigamy thus: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. ALTERNATIVE ANSWER: There are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act. This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime (People vs. Manuel, G.R. No. 165842, November 29, 2005).

Alternative Answer: The three (3) classes of offenders in the crime of qualified seduction are: 1. Those who abuse their authority. Examples: person in public authority, guardian, teacher or a person who, in any capacity, is entrusted with the education or custody of the woman seduced; 2. Those who abuse the confidence reposed on them. Examples: priest, house servant, domestics; 3. Those who abuse their relationship. Examples: a brother who seduced his sister; ascendant who seduced his descendant (Article 337, RPC.)

If you were the judge in a bigamy case where the defense was able to prove that the first marriage was null and void or a nullity, would you render a judgment of conviction or acquittal? Explain your answer. (2%) – ’12 – QIb

“A” is a girl of 17 years and 4th year high school student whose teacher is “B”. Teaching in the same the same school is “C”. One afternoon, after class, “A” and “C” had sexual intercourse in the storeroom of the school. “A” became pregnant. Prosecuted for qualified seduction, “C” interposed the following defenses: (1) “C” is not the teacher of “A”; (2) “A” is not a virgin; and (3) the sexual relation was with the consent of “A”. Are the defenses of “C” meritorious? ’81 – Q13

SUGGESTED ANSWER: I will render a judgment of conviction. Proof that the first marriage is null and void is not a defense in bigamy. As long as the previous marriage was not lawfully dissolved or judicially declared as null and void, contracting a new marriage constitutes bigamy (People vs. Manuel, supra). ALTERNATIVE ANSWER I will render a judgment of acquittal. According to Justice Florenz Regalado, in bigamy, it is essential that the first marriage is valid and subsisting (People vs. Dumpo, 62 Phil. 246). If the first marriage was null and void, there would be no bigamy (People vs. Mendoza, 95 Phil. 845). Under the principle of retroactivity of a marriage being declared void ab initio, the accused is deemed never to have been married. Since bigamy requires that the accused must have been legally married, he cannot be convicted of the crime of bigamy. See Morigo v. People, G.R. No. 145226, 06 February 2004).

The defenses of C are not meritorious. Qualified seduction may be committed as long as the accused is a teacher in the same school where the student is studying. This is due to the abuse of confidence and the moral influence which the teacher exercises over the victim as a member of the faculty (Santos v. People, 40 O.G. (Sup. 6). Virginity is not to be understood in the physical sense. It includes a girl of good reputation (People v. Lanot, C.A.-G.R. No. 04557-CR, 18 January 1964.) Consent of the woman is not a defense since it was accomplished by abuse of authority or confidence in view of the position of “C” as a teacher.

Assuming the existence of the first marriage when accused contracted the second marriage and the subsequent judicial declaration of nullity of the second marriage on the ground of psychological incapacity, would you render a judgment of conviction or acquittal? Explain your answer. (3%) – ’12 – Q1c

Consented Abduction

I will render a judgment of conviction. A declaration of the nullity of the marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned. Since marriage is automatically void, the nullity of this second marriage is not per se an agreement for the avoidance of criminal liability for bigamy. Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these legal consequences is incurring criminal liability for bigamy. TO hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed on some manner, and to thus escape the consequences of contracting multiple marriages, while

A with lewd designs, took a 13-year old girl to a nipa hut in his farm and there had sexual intercourse with her. The girl did not offer any resistance because she was infatuated with the man, who was good-looking and belonged to a rich and prominent family in the town. What crime, if any, was committed by A? '02 – Q9b A committed the crime of consented abduction under Article 343 of the RPC, as amended. The said Article punishes the abduction of a virgin over 12 and under 18 years of age, carried out with her consent and with lewd designs. Although the problem did not indicate the victim to be virgin, virginity should not be understood in its material sense, as to exclude a

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers beguiling throngs of hapless women with promise of futurity and commitment (Tenebro vs. The Honorable Court of Appeals, G.R. No. 150758, February 18, 2004).

YES, Joselito can be prosecuted for bigamy for his subsequent marriage with Anabelle even though his marriage with Ramona was an absolute nullity. Despite the nullity of the first marriage, Joselito should have filed a case of dissolution of such marriage under Article 40, Family Code, before contracting a second marriage with Anabelle.

The prescriptive period for bigamy is 15 years counted from the date of the: ’11 – Q64 (A) discovery of the second marriage by the offended spouse. (B) registration of the second marriage in the Local Civil Registry. (C) celebration or solemnization of the second marriage. (D) discovery of the second marriage by the authorities.

Joe and Marcy were married in Batanes in 1955. After two years, Joe left Marcy and settled in Mindanao where he later met and married Linda on 12 June 1960. The second marriage was registered in the civil registry of Davao City three days after its celebration. On 10 October 1975 Marcy who remained in Batanes discovered the marriage of Joe to Linda. On 1 March 1976 Marcy filed a complaint for bigamy against Joe. The crime of bigamy prescribes in fifteen years computed from the day the crime is discovered by the offended party, the authorities or their agents. Joe raised the defense of prescription of the crime, more than 15 years having elapsed from the celebration of the bigamous marriage up to the filing of Marcy's complaint. He contended that the registration of his 2nd marriage in the civil registry of Davao City was constructive notice to the whole world of the celebration thereof thus binding upon Marcy. Has the crime of bigamy charged against Joe already prescribed? '95 – Q2

Hubert and Eunice were married in the Philippines. Hubert took graduate studies in NY and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The 1st wife, Eunice, heard about the marriage and secured a copy of the marriage contract in NY. Eunice filed a case of bigamy against Huber in the Philippines. ? ’08 – Q6 1. Will the case prosper? ? ’08 – Q6-1 NO, because Philippine Courts have no jurisdiction over a crime committed outside of Philippine territory. Under the principle of territoriality, penal laws, specifically the RPC, are enforceable only within the bounds of our territory (Article 2, RPC.) 2.

If Eunice gave consent to the 2nd marriage, what will your answer be? ’08 – Q6-2

NO. The prescriptive period for the crime of bigamy is computed from the time the crime was discovered by the offended party, the authorities or their agents. The principle of constructive notice which ordinarily applies to land or property disputes should not be applied to the crime of bigamy, as marriage is not property. Thus when Marcy filed a complaint for bigamy on 7 March 1976, it was well within the reglementary period as it was barely a few months from the time of discovery on 10 October 1975 (Sermonia v. Court of Appeals, 233 SCRA 155 [1994].)

The answer will be the same. The consent of Eunice would not confer jurisdiction on Philippine Courts. Raissa and Martin are married to each other but had been separated for the last five years. Raissa decided to wed Juan, her suitor, who had no inkling that she was married. Raissa and Juan accomplished an application for marriage license which they subscribed and swore before the Local Civil Registrar. Raissa declared, in the application, that she is single. The marriage license was issued. In due time, the couple were married by the mayor. Raissa and Juan had their first sexual intercourse later in the evening. What crime or crimes, if any, did Raissa commit? ’08 – Q12

Simulation of Birth A childless couple, A and B, wanted to have a child they could call their own. C, an unwed mother, sold her newborn baby to them. Thereafter, A and B caused their names to be stated in the birth certificate of the child as his parents. This was done in connivance with the doctor who assisted in the delivery of C. What are the criminal liabilities, if any, of the couple A and B, C and the doctor? '02 – Q11

Raissa committed bigamy for contracting a second marriage while her first marriage is still subsisting (Article 349, RPC.) She is also guilty of perjury for making untruthful statements under oath or executing an affidavit upon a material matter, when she declared that she was not married in the application for a marriage license which is a public document (Article 171, RPC.) Lastly, she is also guilty of adultery (Article 333, RPC) for having sexual intercourse with Juan, although she is a married woman.

The couple A and B, and the doctor shall be liable for the crime of simulation of birth, penalized under Article 347 of the RPC, as amended. The act of making it appear in the birth certificate of a child that the persons named therein are the parents of the child when they are not really the biological parents of said child constitutes the crime of simulation of birth. C, the unwed mother is criminally liable for "child trafficking", a violation of Article IV, Sec. 7 of R.A. No. 7610. The law punishes inter alia the act of buying and selling of a child.

CBP is legally married to OEM. Without obtaining a marriage license, CBP contracted a second marriage to RST. Is CBP liable for bigamy? '04 – Q5b Whether CBP could be held liable for bigamy or not, depends on whether the second marriage is invalid or valid even without a marriage license. Although as a general rule, marriages solemnized without license are null and void ab initio, there are marriages exempted from license requirement under Chapter 2, Title 1 of the Family Code, such as in Article 27 which is a marriage in articulo mortis. If the second marriage was valid even without a marriage license, then CBP would be liable for bigamy. Otherwise, CBP is not liable for bigamy but for Illegal Marriage in Article 350 for the RPC, specifically designated as “Marriage contracted against provisions of laws.”

Alternative Answer: The couple A and B, the unwed mother C, and the doctor being all involved in the simulation of birth of the newborn child, violate R.A. No. 7610. Their acts constitute child trafficking which are penalized under Article IV of said law. Crimes Against Honor Libel A is the president of the corporate publisher, of the daily tabloid, Bulgar; B is the managing editor;, and C is the author/writer. In his column. Direct Hit, C wrote about X, the head examiner of the BIR-RDO Manila as follows: "Itong si Xay talagang BUWAYA kaya ang logo ng Lacoste Tshirt niya ay napaka suwapang na buwaya. Ang nickname niya ay si A tty. Buwaya. Ang PR niya ay 90% sa bayad ng taxpayer at ang para sa RP ay 10% long. Kaya ang baba ng collection ng RDO niya, Masyadong magnanakaw si X at dapat tanggalin itong bundat na bundat na buwaya na ito at napakalaki na ng kurakot. "

Joselito married Ramona in July, 1995, only to learn later on that Ramona was previously married to David, from whom Ramona had been separated for more than ten years. Believing that his marriage to Ramona was an absolute nullity, Joselito contracted a subsequent marriage with Anabelle. Can Joselito be prosecuted for bigamy? '96 – Q6(2)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers A, B and C were charged with libel before the R TC of Manila. The three (3) defendants argued that the article is within the ambit of qualified privileged communication; that there is no malice in law and in fact; and, that defamatory comments on the acts of public officials which are related to the discharge of their official duties do not constitute libel. Was the crime of libel committed? If so, are A, B, and C all liable for the crime? Explain. (5%) ’16 – Q16

(C) Yes, given the fact that the imputation of fraud was baseless. (D) Yes, parties must state the truth in their pleadings. X, a tabloid columnist, wrote an article describing Y, a public official, as stupid, corrupt, and having amassed ill-gotten wealth. X relied on a source from Y's own office who fed him the information. Did X commit libel? ’11 – Q13 (A) Yes, since the article was libelous and inconsistent with good faith and reasonable care. (B) No, since X but made a fair commentary on a matter of public interest. (C) No, since X’s article constitutes privileged communication. (D) No, since he wrote his article under the freedom enjoyed by the press.

Yes. The crime of libel is committed. Fair comment on acts of public officers related to the discharge of their duties is a qualified privileged communication, hence, the accused can still be held liable for libel if actual malice is shown. In fair comment, actual malice can be established by showing that comment was made with knowledge that it was false or with reckless disregard of whether it was false or not (Guingguing v. the Honorable Court of Appeals, G.R. No. 128959, 30 September 2005). Journalists bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. The report made by C describing a lawyer in the Bureau of Customs as corrupt cannot be considered as ’’fair” and ’’true” since he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not ’’fair and true reports,” but merely wild accusations. He has written and published the subject articles with reckless disregard of whether the same were false or not (Erwin Tulfo v. People, G.R. No. 161032,16 September 2008). A, president of the publishing company, B, managing editor, and C, writer of the defamatory articles, are all liable for libel. Under Article 360 of the Revised Penal Code, the publisher, and editor of newspaper, shall be responsible for the defamations contained therein to the same extent. The law makes the publisher and editor liable for libel as if they were the author (Tulfo v. People, supra).

X, a court employee, wrote the presiding judge a letter, imputing to Y, also a court employee, the act of receiving an expensive gift from one of the parties in a pending case. Because of this, Y accused X of libel. Does Y need to prove the element of malice in the case? ’11 – Q27 (A) No, since malice is self-evident in the letter. (B) Yes, malice is not presumed since X wrote the letter to the presiding judge who has a duty to act on what it states. (C) No, since malice is presumed with respect to defamatory imputations. (D) Yes, since malice is not presumed in libel. Sam wrote a letter to his friends stating that Judge Odon loves obscene magazines and keeps these in his desk. Charged with libel, can Sam present proof that Judge Odon indeed loves obscene magazines and keeps these in his desk? ’11 – Q38 (A) No, since the imputation is not related to the duties of a judge. (B) No, since Sam does not impute a crime to Judge Odon. (C) No, since Sam imputes the commission of a crime to Judge Odon. (D) Yes, since truth can be a valid defense in libel.

In her weekly gossip column in a tabloid, Gigi wrote an unflattering article about Pablo, a famous singer, and his bitter separation from his wife. The article portrayed Pablo as an abusive husband and caused him to lose lucrative endorsement contracts. Pablo charged Gigi with libel. In her defense, Gigi countered that she did not commit libel because Pablo has attained the status of a public figure so that even his personal life has become a legitimate subject of public interest and comment.

Angelina maintains a website where visitors can give their comments on the posted pictures of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in Angelina’s website is a fake and that Angelina is known to sell counterfeit items. What case can be filed against Bettina? ’10 – Q11

Is Gigi correct? (7%) ’13-Q4

I will advise Angelina to file a criminal case of libel against Bettina because the imputation made by Bettina is libellous. Whether the imputation of a defect, status, or condition is real or imaginary, if it publicly tends to discredit, dishonor or place in contempt or ridicule a particular person who is identified, the imputation is presumed by law to be malicious and this penalized as libel under Article 355 of the Revised Penal Code. Moreover, if Bettina is engaged in similar line of trade, her statement against the goods sold by Angelina may constitute a violation of the law on Unfair Competition (Republic Act No. 8293.)

SUGGESTED ANSWER: No. Gigi is not correct. Although wider latitude is given to defamatory utterances against public figures in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public figure’s work, the same may give rise to criminal liability (Fermin v. People, G.R. No. 157643, March 28, 2008). Any attack upon the private character of the public figure on matters which are not related to their works may constitute libel under Art. 355 (Saxon v. Hon. Court of Appeals, G.R. No. 120715, March 29,1996). Here, Gigi was attacking the personal life of Pablo as a husband and not his public life as a famous singer.

The statement that “In the crime of libel, truth is an absolute defense” is FALSE. ’09 – Q11d

ALTERNATIVE ANSWER: Gigi is correct. Pablo, a famous singer, attained the status of a public figure so that even his personal life that has something to do with his character and integrity became legitimate public interest. Here, Pablo was portrayed as an abusive husband and caused him to lose lucrative endorsement contracts. The article impinges on the moral fiber and qualifications of Pablo as a famous singer entitled to respect as a public figure. Subject only to the requisite that the author has knowledge of its falsity or with reckless disregard of the truth, the article, thus, constituted a qualified privileged communication protected by the freedom of expression. Gigi cannot be convicted absent proof of actual malice.

Article 361 of the RPC provides that proof of truth shall be admissible in libel cases only if the same imputes a crime or is made against the public officer with respect to material facts related to the discharge of their official duties, and moreover, must have been published with good motives and for justifiable ends. Hence, “truth” as a defense, on its own, is not enough. In an interview aired on television, Cindy uttered defamatory statements against Erika, a successful and reputable businesswoman. What crime or crimes did Cindy commit? '05 – Q15

Plaintiff X said in his civil complaint for damages that defendant Y, employing fraud, convinced him to buy a defective vehicle. Y filed a criminal action for libel against X for maliciously imputing fraud on him. Will the action prosper if it turns out that the civil complaint for damages was baseless? ’11 – Q11 (A) No, since pleadings filed in court are absolutely privileged. (B) No, since malice is not evident.

Cindy committed libel. Defamation made in a television program is penalized as libel under Article 355 of the RPC. Television falls under “similar means” in the enumeration as “radio, phonograph, theatrical exhibition, cinematographic exhibition, or any similar means” in said Article (People v. Casten, C.A. G.R. No. 07924 – CR., 13 December 1974.)

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers During a seminar workshop attended by government employees from the BOC and the BIR, A, the speaker, in the course of his lecture, lamented the fact that a great majority of those serving in said agencies were utterly dishonest and corrupt. The following morning, the whole group of employees in the two bureaus who attended the seminar, as complainants, filed a criminal complaint against A for uttering what the group claimed to be defamatory statements of the lecturer. In court, A filed a motion to quash the information, reciting fully the above facts, on the ground that no crime was committed. If you were the judge, how would you resolve the motion? '03 – Q11

Slander The exchanges of highly offensive words between two quarrelling women in the presence of a crowd of people constitute: ’11 – Q20 (A) one count of grave slander against the woman who uttered the more insulting expressions. (B) grave slander against the woman who started it and light slander against the other woman. (C) two separate counts of light slander, one for each woman. (D) two separate counts of grave slander, one against each of them. Distinguish clearly but briefly between oral defamation and criminal conversation. '04 – Q10(5)

I would grant the motion to quash on the ground that the facts charged do not constitute an offense, since there is no definite person or persons dishonored. The crime of libel or slander, is a crime against honor such that the person or persons dishonored must be identifiable even by innuendoes: otherwise the crime against honor is not committed. Moreover, A was not making a malicious imputation, but merely stating an opinion; he was delivering a lecture with no malice at all during a seminar workshop. Malice being inherently absent in the utterance, the statement is not actionable as defamatory

Oral defamation, known as SLANDER, is a malicious imputation of any act, omission, condition or circumstance against a person, done orally in public, tending to cause dishonor, discredit, contempt, embarrassment or ridicule to the latter. This is a crime against honor penalized in Article 358 of the RPC. CRIMINAL CONVERSATION. The term is used in making a polite reference to sexual intercourse as in certain crimes, like rape, seduction and adultery. It has no definite concept as a crime.

A was nominated Secretary of a Department in the Executive Branch of the government. His nomination was thereafter submitted to the Commission on Appointments (COA) for confirmation. While the COA was considering the nomination, a group of concerned citizens caused to be published in the newspapers a fullpage statement objecting to A's appointment They alleged that A was a drug dependent, that he had several mistresses, and that he was corrupt, having accepted bribes or favors from parties transacting business in his previous office, and therefore he was unfit for the position to which he had been nominated. As a result of the publication, the nomination was not confirmed by the COA. The official sued the concerned citizens and the newspapers for libel and damages on account of his non-confirmation. How will you decide the case? '02 – Q17

Distinguish slander by deed from maltreatment. ’94 – Q2(2) SLANDER BY DEED is a crime committed when a person publicly subjects another to an act intended or calculated to cast dishonor, discredit or contempt upon the latter. Absent the intent to cast dishonor, discredit, contempt, or insult to the offended party, the crime is only MALTREATMENT under Article 266, par. 3, where, by deed, an offender ill-treats another without causing injury. Because of a pendency of a labor dispute, two (2) belligerent labor unions had a confrontation in a picket line during which the President and the Secretary of one union shouted to the members and officers of the rival union composed of men and women, the following: “Mga tuta, mga walang bayag, mga kabit ng Intsik, mga tuta, mga segunda mano.” Are the President and the Secretary of said union liable for oral defamation/slander? ’93 – Q7

I will acquit the concerned citizens and the newspapers involved, from the crime of libel, because obviously they made the denunciation out of a moral or social duty and thus there is absence of malice. Since A was a candidate for a very important public position of a Department Secretary, his moral, mental and physical fitness for the public trust in such position becomes a public concern as the interest of the public is at stake. It is pursuant to such concern that the denunciation was made; hence, bereft of malice.

NO. The President and the Secretary of the Union are not liable for oral defamation or slander because there is no identity of the offended party. The individual defamed or slandered was not singled out (People v. Uy Tioco, 32 Phil. 624). For some time, bad blood had existed between the two families of Maria Razon and Judge Gadioma who were neighbors. First, there was a boundary dispute between them which was still pending in court. Maria's mother also filed an administrative complaint against the judge which was however dismissed. The Razons also felt intimidated by the position and alleged influence of their neighbor. Fanning fire to the situation was the practice of the Gaiomas of throwing garbage and animal excrement into the Razon's premises. In an explosion of anger, Maria called Judge Gadioma “land grabber”, “shameless”, and “hypocrite.” What crime was committed by Maria, if any? '88 – Q15b

If defamatory imputations are made not by publication in the newspapers but by broadcast over the radio, do they constitute libel? '02 – Q17b YES, because libel may be committed by radio broadcast Article 355 of the RPC punishes libel committed by means, among others, of radio broadcast, inasmuch as the broadcast made by radio is public and may be defamatory. What is LIBEL and what pertinence has malice in law and malice in fact in incurring criminal liability therefor. ’85 – Q20

Maria committed the crime of slander or slight defamation only because she was under the influence of anger. When Maria called Judge Gadioma a hypocrite and land grabber she imputed to him the commission of crimes.

Libel is a public and malicious imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or a juridical person or to blacken the memory of one who is dead. Malice in law is presumed from every defamatory imputation. When the imputation is defamatory, the prosecution need not prove malice. The law presumes that defamation is malicious. This is malice in law. In a conditionally privileged communication, malice is not presumed. The prosecution must prove malice in fact for the conviction of the accused of libel involving qualifiedly privileged communication. This means that the accused was prompted by personal ill-will or spite and not in response to the performance of a duty but merely to injure the reputation of the person defamed. Malice in fact is inconsistent with good motives and justifiable ends.

Incriminating Innocent Persons A police officer surreptitiously placed a marijuana stick in a student’s pocket and then arrested him for possession of marijuana cigarette. What crime can the police officer be charged with? ’11 – Q9 (A) None, as it is a case of entrapment (B) Unlawful arrest (C) Incriminating an innocent person (D) Complex crime of incriminating an innocent person with unlawful arrest Quasi-Offenses

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers gain as he derived some benefit or satisfaction from its use. On the other hand, A argued that he has no intent of making himself the owner of the car as he in fact returned it to the garage after the joy ride. What crime or crimes, if any, were committed? Explain. (5%)

Reckless Imprudence Olimpio caught a cold and was running a fever. His doctor prescribed paracetamol. Olimpio went to the drug store with the prescription, and the pharmacist sold him 3 tablets. Upon arriving home, he took a tablet. One hour later, he had a seizure and died. The autopsy showed that the tablet he had taken was not paracetamol but a pill to which he was allergic. The pharmacist was charged with murder. Is the charge proper? If not, what should it be? ’08 – Q3

The crime committed by A is carnapping. The unlawful taking of motor vehicles is now covered by the Anti-Carnapping Law (R.A. 6539 as amended) and not by the provisions on qualified theft or robbery (People v, Bustinera, G.R. No. 148233, 8 June 2004). The concept of carnapping is the same as that of robbery and theft. Hence, rules applicable to theft or robbery are also applicable to carnapping (People v. Asamuddin, G.R. No. 213913, 2 September 2015). In theft, unlawful taking should be understood within the Spanish concept of apoderamiento. In order to constitute apoderamiento, the physical taking must be coupled with the intent to appropriate the object, which means intent deprive the lawful owner of the thing, whether permanently or temporarily (People v. Valenzuela, G. R. No. 160188, 21 June 2007). In this case, A took the car without consent of the B with intent to temporarily deprive him of the car. Although the taking was "temporary" and for a "joy ride", the Supreme Court in People v. Bustinera, (supra), sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure.

The charge was improper. The pharmacist should be charged with criminal negligence, or reckless imprudence resulting in homicide, because there was no intent to kill Olimpio. The accused inexcusably lacked precaution in failing to dispense the proper medicine to the victim which caused his death (Article 365, RPC.) During a concert of Gary V, and in order to prevent the crowd from rushing to the stage, Rafael Padilla (a security guard) pointed his gun at the onrush of people. When the crowd still pushed forward, Rafael fired his gun into the air to scare them off. However, the bullet hit one of the metal roof supports, ricocheted and then hit one of the stage crew members, causing injuries which resulted in the latter’s confinement in a hospital for twelve days. What crime/s did Rafael commit? ’07 – Q9 The crime committed by Rafael is Simple Negligence Resulting in Less Serious Physical Injuries. Rafael is a security guard and was on duty when he discharged the firearm. The discharge of the firearm was not calculated to cause alarm or danger but simply to ward off the unruly crowd which persisted in pushing forward, thereby challenging the duty he was to fulfill there. The discharge of the firearm, therefore, should neither constitute a crime of Alarms and Scandal under Article 155 of the Revised Penal Code nor may such discharge amount to a crime of Illegal Discharge of Firearms under Article 254 of the Code since it was not directed towards a particular person when the firearm was discharged. However, the physical injuries resulting from the discharge of the firearm betrays a lack of precaution in a situation where the danger to the discharge of the firearm is not clearly manifest, thus considered as simple imprudence only. The crime is Simple Imprudence Resulting In Less Serious Physical Injuries, since the physical injuries required only twelve (12) days of medical attention.

What should be the proper charge against an offender who unlawfully took and carried away a motor vehicle belonging to another without the latter's consent, killing the driver in the process? ’12 Q72 a) The proper charge against the offender should be murder with the use of motor vehicle. b) The proper charge against the offender should be qualified carnapping or carnapping in an aggravated form. c) The proper charge against the offender should be carnapping and homicide. d) The proper charge against the offender should be robbery with homicide. SUGGESTED ANSWER: b) The proper charge against the offender should be qualified carnapping or carnapping in an aggravated form. The last clause of Section 14 of RA No. 6539 as amended by RA No. 7659 provides: “the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof.” The amendment clarifies the intention of the law to make the offense a special complex crime, in the same way that robbery with homicide. As such, the killing merely qualifies the crime of carnapping which merely qualifies the crime of carnapping which for lack of specific nomenclature may be known as qualified carnapping or carnapping in an aggravated form (People vs. Mejia, G.R. No. 118940-41 and G.R. No. 119407 July 7, 1997).

Alternative Answer: The crime is reckless imprudence resulting in less serious physical injuries, because the discharge of the firearm was not necessary under the circumstances and therefore, Rafael should be aware of the possibility of injuries that could result from such discharge of the firearm. SPECIAL PENAL LAWS Anti-Alias Law

Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a day-long official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for P20,000, although the car was worth P800,000. ’05 – Q9 1. What are the respective crimes, if any, committed by Allan, Danny and Jules? ’05 – Q9-2

When can a Filipino citizen residing in this country use an alias legally? Give 3 instances. ’06 – Q2(1) An alias may be legally used – 1. As pseudonym in cinema and other entertainment field; 2. As a pen name in a literary composition or work; 3. As a pseudonym in television and radio broadcasting (Ursua v. Court of Appeals, 256 SCRA 147 [1996]; Sections 1 and 2, R.A. No. 6085.)

Allan committed the crime of malversation by abandonment or negligence in leaving the government car assigned to him for his official use and for which he was accountable, with the ignition key in the car unlocked. Danny committed the crime of fencing for having bought the car which was the proceeds of carnapping, a crime in the nature of theft or robbery of a motor vehicle. The presumption of fencing applies to him

Anti-Carnapping Act of 1972 (R.A. No. 6539) A is the driver of B's Mercedes Benz car. When B was on a trip to Paris, A used the car for a joy ride with C whom he is courting. Unfortunately, A met an accident. Upon his return, B came to know about the unauthorized use of the car and sued A for qualified theft. B alleged that A took and used the car with intent to

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers for he paid price so inadequate for the value of the car suggestive that the car was not legitimately acquired by his brother. Jules committed the crime of carnapping for the unlawful taking, with intent to gain, of the government’s motor vehicle. Unlawful taking of a motor vehicle is now governed by the Anti-Carnapping Act of 1972 (R.A. No. 6539), not by the provisions of the Revised Penal Code on theft or robbery.

fees preparatory to his final exams in Commerce. Distressed and disturbed, she borrowed money from her compadre Mang Juan with the assurance to pay him within 2 months. Two months lapsed but Aling Maria failed to settle her obligation. Mang Juan told Aling Maria that she does not have to pay the loan if she will allow her youngest 10-year old daughter Annie to work as a housemaid in his house for 2 months at P1,000.00 a month. Despite Aling Maria's objection, Mang Juan insisted and brought Annie to his house to work as a maid. 1. Was a crime committed by Mang Juan when he brought Annie to his house as maid for the purpose of repaying her mother's loan? ’06 – Q17-1

Alternative Answer: Danny should be liable as an accessory, not as a fence, if the crime charged to Jules is qualified theft because there is no accessory under the Anti-Carnapping Act of 1972 (R.A. No. 6539). 2.

YES, Mang Juan violated Section 12 of R.A. No. 7610 on child abuse and exploitation, as amended by R.A. No. 7658, prohibiting employment of children below 15 years of age, in relation to the crime of Exploitation of Child Labor under Article 273, RPC. Annie is only 10 years old and under the pretext of reimbursing himself of a debt owed by Annie’s mother, Mang Juan took Annie to his house to work as a maid despite her mother’s objection. Annie could not have given consent to the exploitation since she was only ten (10) years old and thus could not give any valid consent.

What, if any, are their respective civil liabilities? ’05 – Q9-2

Allan, Jules and Danny are all civilly liable for restitution of the car to the government, or if no longer possible, reparation of the damages caused by payment of the replacement cost of the car minus allowance for depreciation, and to indemnify for consequential damages. Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One evening, Raul rode on the sidecar, poked a knife at Samuel and instructed him to go near the bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel several times until he was dead. Raul fled from the scene taking the motorcycle with him. What crime or crimes did Raul commit? '98 – Q6

2.

If Aling Maria herself was made to work as a housemaid in Mang Juan's household to pay her loan, did he commit a crime? ’06 – Q17-2

If it was against her will that Aling Maria was made to work as a housemaid in Mang Juan’s household to pay her debt to him, the latter would be committing a crime under Article 274 of the RPC, which punishes any person who shall compel a debtor to work for him as a household servant against her will just to enforce payment of a debt.

Raul committed the composite crime of Carnapping with homicide under Section 14 of R.A. No. 6539, as amended, considering that the killing “in the course” or “on the occasion of” a carnapping (People v. De la Cruz, 183 SCRA 763 [1990].) A motorcycle is included in the definition of a “motor vehicle” in said Rep. Act, also known as the “AntiCarnapping Act of 1972”. There is no apparent motive for the killing of the tricycle driver but for Raul to be able to take the motorcycle. The fact that the tricycle driver was killed brings about the penalty of reclusion perpetua to death.

Mrs. MNA was charged of child abuse. It appears from the evidence that she failed to give immediately the required medical attention to her adopted child, BPO, when he was accidentally bumped by her car, resulting in his head injuries and impaired vision that could lead to night blindness. The accused, according to the social worker on the case, used to whip him when he failed to come home on time from school. Also, to punish him for carelessness in washing dishes, she sometimes sent him to bed without supper. She moved to quash the charge on the ground that there is no evidence she maltreated her adopted child habitually. She added that the accident was caused by her driver's negligence. She did punish her ward for naughtiness or carelessness, but only mildly. Is her motion meritorious? '04 – Q9a

Anti-Child Abuse Law (R.A. No. 7610) Arnold, 25 years of age, was sitting on a bench in Luneta Park watching the statue of Jose Rizal when, without his permission, Leilani, 17 years of age, sat beside him and asked for financial assistance, allegedly for payment of her tuition fee, in exchange for sex. While they were conversing, police operatives arrested and charged him with violation of Section 10 of RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), accusing him of having in his company a minor, who is not related to him, in a public place. It was established that Arnold was not in the performance of a social, moral and legal duty at that time. Is Arnold liable for the charge? Explain. (5%) ’16 – Q12

NO, the motion to quash is not meritorious. It is not necessary that movant's maltreatment of a child be “habitual” to constitute child abuse. The wrongful acts penalized as “Child Abuse” under R.A. No. 7610 refers to the maltreatment of the child, “whether habitual or not”; this is expressly stated in Section 2(b) of the said Law. Mrs. MNA should be liable for child abuse. Sometime in December 1992, retired Lt. Col. Agaton celebrating the first year of his compulsory retirement from the AFP, had in his company a fourteen (14) year old girl whose parents were killed by the Mt. Pinatubo eruption and being totally orphaned has been living or fending for herself in the streets of Manila. They were alone in one room in a beach resort and stayed there for two (2) nights. Before they parted, retired Lt. Col. Agaton gave the girl P1,000 for her services. She gladly accepted it. ’93 – Q5 1. What crime may the retired colonel be charged with? ’93 – Q5-2

No, Arnold is not liable. Under Section 10 of RA No. 7610, any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places is liable for child abuse. Arnold is not liable for the charge. To be held liable under Section 10 (b) of RA No. 7610, it is indispensable that the child in the company of the offender must be 12 years or under or who in 10 years or more his junior in a public place. In this case, Leilani is 17 years of age, and only 8 years younger than Arnold. Moreover, Leilani sat beside Arnold without his permission, hence, he is not in the company of a child in a public place. Lastly, applying the episdem generis principle, Arnold is not liable for child abuse because Luneta is not a place similar to hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort.

The retired colonel may be charged with child abuse, in violation of R.A. No. 7610, a law providing special protection against child abuse, exploitation, and discrimination. One of the acts of child abuse or exploitation penalized under Section 10(b), Article VI of R.A. No. 7610 is that of keeping company of a minor who is twelve (12) years or under or who is ten (10) years or more younger than the offender in a hotel, motel, beer house, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort, and similar places. Considering that Lt. Col. Agaton is a retiree pursuant to a compulsory retirement, while the child

Aling Maria received an urgent telephone call from Junior, her eldest son, asking for P2,000 to complete his semestral tuition

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers he kept company within a private room in the beach resort, is only 14 years old, there must be an age difference of more than 10 years between them. This fact plus the circumstances that Lt. Col. Agaton stayed with the child, a girl, in one room at such beach resort for two nights, and thereafter he gave her P1,000.00 “for her services”, constitutes the very evil punished, among other acts, in said law. 2.

dence of fencing. Since Tonio is in possession of a stolen property, it is presumed that he committed the crime of fencing. (B) Manolo decided to take matters into his own hands and, one night, broke into Tonio’s house by destroying the wall and taking the painting. What, if any, would be the liability of Manolo? Manolo is liable for the crime of trespass to dwelling qualified by use of force since he entered the house of Tonio against the latter’s will. There is no robbery because the owner of the property taken cannot commit robbery.

What possible defenses can he interpose? ’93 – Q5-1

The possible defenses Lt. Col. Agaton may interpose are that the child is related to him by affinity, or by consanguinity within the fourth degree, or by a bond recognized by law, or local customs and traditions, or that he was only acting in pursuance of a moral, social, or legal duty (Section 10(b), Article VI of R.A. No. 7610.)

Roberto bought a Toyota Fortuner from Iñigo for P500,000. While driving his newly-bought car, Roberto met a minor accident that made the examination of his vehicle's Registration Certificate necessary. When the policeman checked the plate, chassis and motor numbers of the vehicle against those reflected in the Registration Certificate, he found the chassis and motor numbers to be different from what the Registration Certificate stated. The Deed of Sale covering the sale of the Fortuner, signed by Iñigo, also bore the same chassis and motor numbers as Roberto's Registration Certificate. The chassis and motor numbers on the Fortuner were found, upon verification with the Land Transportation Office, to correspond to a vehicle previously reported as carnapped.

Anti-Fencing Law (P.D. No. 1612) Ofelia, engaged in the purchase and sale of jewelry, was charged with violation of PD 1612, otherwise known as the Anti-Fencing Law, for having been found in possession of recently stolen jewelry valued at PI 00,000.00 at her jewelry shop. Her defense is that she merely bought the same from Antonia and produced a receipt covering the sale. She presented other receipts given to her by Antonia representing previous transactions. Convicted of the charge, Ofelia appealed, arguing that her acquisition of the jewelries resulted from a legal transaction and that the prosecution failed to prove that she knew or should have known that the pieces of jewelry which she bought from Antonia were proceeds of the crime of theft. [a] What is a "fence" under PD 1612? (2.5%) ’16 – Q6(a)

Roberto claimed that he was in good faith; Iñigo sold him a carnapped vehicle and he did not know that he was buying a carnapped vehicle. If you were the prosecutor, would you or would you not charge Roberto with a crime? (7%) ’13-Q6 SUGGESTED ANSWER: I will charge Roberto with violation of the Anti-Fencing Law. The elements of “fencing” are: (1) robbery or theft has been committed; (2) the accused, who took no part in the robbery or theft, “buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any other manner deals in any article or object taken” during that robbery or theft; (3) the accused known or should have known that the thing was derived from that crime; and (4) by the deal he makes he intends to gain for himself or for another. Here, someone carnapped the vehicle, and sold it to Roberto who did not take part in the crime. Roberto should have known also that the car was stolen because it was not properly documented as the deed of sale and registration certificate did not reflect the correct number of the vehicle’s engine and chassis. Apparently, he made no effort to check the papers covering his purchase. Lastly, Roberto’s defense of good faith is flawed because Pres. Decree No. 1612 is a special law and therefore, its violation is regarded as malum prohibitum, requiring no proof of criminal intent (Dimat v. People, G.R. no. 181184, January 25, 2012).

Fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft (Section 2 of PD 1612). [b] Is Ofelia liable under the Anti-Fencing Law? Explain. (2.5%) ’16 – Q6(b) No. Ofelia is not liable under the Anti-Fencing Law. While under the said law mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing, such evidence when sufficiently overturned constitutes a defense. In this case, Ofelia’s defense that she merely acquired the jewelries through a legitimate transaction is sufficient. Further, there is no other circumstance as regards the jewelries which would indicate to Ofelia, an innocent purchaser, that the jewelries were the subject of theft. There was even a receipt produced by Ofelia for the transaction.

ALTERNATIVE ANSWER: The facts given show that Roberto “bought” the car from Inigo; that a “deed of sale” covering the subject vehicle was executed by Inigo; that there is also a copy of the “Registration Certificate”; that Roberto aver, too, of being a buyer in good faith and lacking of any knowledge that the subject car is a carnapped vehicle.

ALTERNATIVE ANSWER: Yes. Under Section 5 of PD No. 1612, mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Failure to prove that Ofelia knows, or should have known that the jewelry is stolen, therefore, is not a defense since this element is presumed to be present under Section 5 because Ofelia is in possession of this stolen property. Moreover, there is no showing that Ofelia secured a permit or clearance from the PNP station commander of the place of sale required in Section 6 of PD No. 1612 (Suggested Answer by UP Law Center to a 1995 Bar question)

As against the foregoing, there is only a certification from the Land Transportation Office showing that the vehicle had been previously reported as carnapped. Consequently, in light of the satisfactory explanation of Roberto of his possession of the vehicle, the presumption of authorship of the theft upon a person found in possession of the stolen personal property finds no application in the instant case. There is, thus, no probable cause or evidence to warrant the prosecution of Roberto for any wrongdoing.

Manolo, an avid art collector, was invited to Tonio’s house. There, Manolo noticed a nice painting that exactly looked like the painting which he reported was stolen from him some years back. Manolo confronted Tonio about the painting, but Tonio denied any knowledge, claiming that he bought the painting legitimately from a friend. Manolo later proved to Toniothat the painting was indeed the stolen painting. ‘14-Q18 (A) What crime/s, if any, may Tonio be charged with? Tonio may be charged with the crime of fencing. Under Section 5 of PD 1612, mere possession of a stolen article or object or anything of value which has been the subject of robbery or thievery is prima facie evi-

Arlene is engaged in the buy and sell of used garments more popularly known as “ukay-ukay.” Among the items found by the police in a raid of her store were brand-new Louie Feraud blazers. Arlene was charged with fencing.” Will the charge prosper? ’10 – Q5 NO, a charge of “fencing” will not prosper. “Fencing” is committed when a person, with intent to gain for himself or for another, deals in any matter with an article of value which he knows or should be known

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers to him to have been derived from proceeds of theft or robbery (Sec. 2, P.D. No. 1612.) Thus, for a charge of fencing to prosper, it must first be established that a theft or robbery of the article subject of the alleged “fencing” has been committed – a fact which is wanting in this case. It should be noted that the suspect is engaged in the buy and sell of used garments, which are in the nature of personal property. In civil law, possession of personal or movable property carries with it a prima facie presumption. The presumption of “fencing” arises only when the article or item involved is the subject of a robbery or thievery (Sec. 5, P.D. No. 1612.)

Being the assistant public high school principal, it is her duty to intervene in the release of salary differentials and per diem of classroom teachers under her. Her act of doing so, made with a request for a share or benefit therefor constitutes graft or corrupt practice under Section 3(b) of R.A. No. 3019. Considering that the acts prohibited or punished under this law are mala prohibita, and this punishable thereunder, whether done with criminal intent or not. Charina, a clerk of court of an RTC Branch, promised plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000. Charina was charged with violation of Section 3(b) of R.A. No. 3019, prohibiting any public officer from receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer in his official capacity, has to intervene under the law. While the case is being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the RPC. Charina demurred to the 2nd information, claiming that she can no longer be charged for the same act under R.A. No. 3019. Is Charina correct? ’09 – Q7

The statement that “In a prosecution for fencing under P.D. No. 1512, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery” is FALSE. ’09 – Q11c Fencing is committed if the accused “should have known” that the goods or articles had been the subject of theft or robbery (Section 2(a), P.D. No. 1612.) Mere possession of the stolen goods gives rise to the prima facie presumption of fencing. Pedro, a municipal treasurer, received from the Provincial Treasurer five (5) brand new typewriters for use in the municipal treasurer’s office. Each typewriter is valued at P10,000. Since Pedro needed money for the hospitalization of his sick son, he sold four (4) of the typewriters to his friend, Rodolfo, a general merchant in San Isidro for P2,000 each or a total of P8,000. Rodolfo, a general merchant knew that one typewriter could easily be between P6,000 to P10,000, and for this reason, he readily agreed to buy the four typewriters. Rodolfo then resold the typewriters at P6,000 thus making a profit of P16,000. Two months after the transaction, Pedro was audited and the investigation as to his accountabilities led to the discovery that Rodolfo bought the four (4) typewriters from Pedro. Is Rodolfo liable as an accessory or for violation of the Anti-Fencing Law? ’87 – Q10b

NO, Charina is not correct. Although the charge for violation of R.A. No. 3019 and the charge for Indirect Bribery (Article 211, RPC) arose from the same act, the elements of the violation charged under R.A. No. 3019 are not the same as the felony charged under the Revised Penal Code (Mejia v. Pamaran, 160 SCRA 457 [1988].) Hence, the crimes charged are separate and distinct from each other, with different penalties. The two charges do not constitute a ground for a motion to dismiss or a motion to quash, as there is no jeopardy against the accused. The Bangko Sentral ng Pilipinas (BSP), by a resolution of the monetary board, hires Theof Sto. Tomas, a retired manager of a leading bank as a consultant. Theof later receives a valuable gift from a bank under investigation by the BSP. May Theof be prosecuted under R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) for accepting such a gift? ’03 – Q15

Rodolfo is not liable for violation of the Anti-Fencing Law as this refers only to the buy and sell of articles of value which are the proceeds of robbery and theft. Rodolfo is liable as an accessory to the crime of malversation as he purchased the typewriters for P2,000 each only, although he knew it could easily be sold for P6,000 to P10,000. Therefore, he profited or assisted the principal to profit from the effects or proceeds of the commission of the crime.

NO, Theof may not be prosecuted under R.A. No. 3019, but may be prosecuted for violation of P.D. No. 46, under which such act of receiving a valuable gift is punished. Although Theof is a “public officer” within the application of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019), yet his act of receiving such gift does not appear to be included among the punishable acts under R.A. No. 3019 since he is not to intervene in his official capacity in the investigation of the bank which gave the gift. Penal laws must be strictly construed against the State. In any case, Theof is administratively liable.

Anti-Graft and Corrupt Practices Act (R.A. No. 3019) May a public officer charged under Section 3(b) of R.A. No. 3019 [“directly or indirectly requesting or receiving any gift, present, share, percentage of benefit, for himself or for any other person, in connection with any contract transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law”] also be successively charged with direct bribery under Article 210 of the RPC? ’10 – Q3

A month after the arraignment of Brad Kit Commissioner of the HLURB, who was charged with violation of Section 3(h) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) before the Sandiganbayan, the Office of the Special Prosecutor filed a Motion to Suspend Accused Pendente Lite pursuant to Section 13 of the Anti-Graft Law. The Court granted the motion and suspended accused Brad Kit for a period of 90 days. Accused assailed the constitutional validity of the suspension order on the ground that it partakes of a penalty before Judgment of conviction is reached and is thus violative of his constitutional right to be presumed innocent. He also claimed that this provision of the law on suspension pendente lite applies only to elective officials and not to appointed ones like him. Rule with reasons. '00 – Q12

YES, a public officer charged under Section 3(b) of R.A. No. 3019 (Anti-Graft and Corrupt Services Act) may also be charged simultaneously or successively for the crime of direct bribery under Article 210 of the Revised Penal Code, because the two crimes are essentially different and are penalized under distinct legal philosophies. Whereas violation of Sec. 3(b) of R.A. No. 3019 is a malum prohibitum, the crime under Art. 210 of the Code is a malum in se. Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with the agreement that they would reimburse her for her expenses. Did Proserfina commit a crime? ’10 – Q9

Mr. Carlos Gabisi, a customs guard, and Mr. Rico Yto, a private Individual, went to the office of Mr. Diether Ocuarto, a customs broker, and represented themselves as agents of Moonglow Commercial Trading, an Importer of children's clothes and toys. Mr. Gabisi and Mr. Yto engaged Mr. Ocuarto to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Moonglow's shipment. Mr. Gabisi and Mr. Yto submitted to Mr. Ocuarto a packing list, a commercial invoice, a bill of lading and a Sworn Import Duty Declaration which declared the shipment as children's toys, the taxes

YES. Proserfina committed a violation of Section 3(b) of R.A. No. 3019 which considers as a corrupt practice, the act of: “(b) Directly or indirectly requesting 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.”

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers and duties of which were computed at P60,000. Mr. Ocuarto filed the aforementioned documents with the Manila International Container Port. However, before the shipment was released, a spot check was conducted by Customs Senior Agent James Bandido, who discovered that the contents of the van (shipment) were not children's toys as declared in the shipping documents but 1,000 units of video cassette recorders with taxes and duties computed at P600,000. A hold order and warrant of seizure and detention were then issued by the District Collector of Customs. Further investigation showed that Moonglow is non-existent. Consequently, Mr. Gabisi and Mr. Yto were charged with and convicted for violation of Section 3(e) of R.A. No. 3019 which makes it unlawful among others, for public officers to cause any undue Injury to any party, including the Government. In the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence. In their motion for reconsideration, the accused alleged that the decision was erroneous because the crime was not consummated but was only at an attempted stage, and that in fact the Government did not suffer any undue injury. '00 – Q16 1. Is the contention of both accused correct? '00 – Q16-2

amended; and (2) there must be a determination of a valid information against the accused that warrants his suspension. A is charged with the crime defined in Section 3(e) of the AntiGraft and Corrupt Practices Act in an Information that reads: “That from 01 to 30 January 1995, in the City of Pasig and within the jurisdiction of this Honorable Court, the accused, being then employed in the Office of the District Engineer, Department of Public Works and Highways and in the discharge of his official administrative functions, did then and there willfully and unlawfully work for and facilitate the approval of B's claim for the payment of the price of his land which the government had expropriated, and after the claim was approved, the accused gave B only P1,000.00 of the approved claim of P5,000 and willfully and unlawfully appropriated for himself the balance of P4,000, thus causing undue injury to B and the Government.” A has filed a motion to quash the information, contending that it does not charge an offense. Is he correct? '97 – Q20 YES, the contention of A is correct. The information failed to allege that the undue injury to B and the government was caused by the accused's manifest partiality, evident bad faith, or gross Inexcusable negligence, which are necessary elements of the offense charged, i.e., violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. The accused is employed in the Office of the District Engineer of the DPWH which has nothing to do with the determination and fixing of the price of the land expropriated, and for which expropriated land the Government is legally obligated to pay. There is no allegation in the information that the land was overpriced or that the payment of the amount was disadvantageous to the Government. It appears that the charge was solely based on the accused having followed up the payment for B's land which the Government has already appropriated, and that the accused eventually withheld for himself from the price of the said land, the amount of P4,000 for his services. No violation of Section 3(e) of the Anti-Graft and Corrupt Act appears. At most, the accused should be merely charged administratively.

YES, the contention of the accused that the crime was not consummated is correct. R.A. No. 3019 is a special law punishing acts mala prohibita. As a rule, attempted violation of a special law is not punished. Actual injury is required. 2.

Assuming that the attempted or frustrated stage of the violation charged is not punishable, may the accused be nevertheless convicted for an offense punished by the RPC under the facts of the case? '00 – Q16-1

YES, both are liable for attempted estafa thru falsification of commercial documents, a complex crime. They tried to defraud the Government with the use of false commercial and public documents. Damage is not necessary. The suspension order does not partake of a penalty and is thus not violative of Brad Kit's constitutional right to be presumed innocent. Under the law, the accused public officers shall be suspended from office while the criminal prosecution is pending in court (Section 13, R.A. No. 3019). Such preventive suspension is mandatory to prevent the accused from hampering the normal course of the investigation (Rios v. Sandiganbayan, 279 SCRA 581 (1997); Bunye v. Escareal 226 SCRA 332 [1993].) Neither is there merit in Brad Kit's claim that the provision on suspension pendente lite applies only to elective officials and not to appointed ones like him. It applies to all public officials Indicted upon a valid information under R.A. No. 3019, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service (Segovia v. Sandiganbayan, 288 SCRA 328 [1998].)

Dr. Chow, a government doctor, failed to submit his Daily Time Record (DTR) from January to March 2000 and did not get approval of his sick leave application for April because of evidence that he was actually moonlighting elsewhere. Thus, the medical Director caused the withholding of his salary for the periods in question until he submitted his DTRs in May 2000. Can Dr. Chow prosecute the medical director for causing him undue injury in violation of the Anti-Graft and Corrupt Practices Act? ’11 – Q17 (A) Yes, since the medical Director acted with evident bad faith. (B) No, since the medical director has full discretion in releasing the salary of government doctors. (C) Yes, since his salary was withheld without prior hearing. (D) No, since Dr. Chow brought it upon himself, having failed to submit the required DTRs.

A public officer was accused before the Sandiganbayan of a violation of Section 3 (e) of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act. Just after arraignment and even before evidence was presented, the Sandiganbayan issued an order for his suspension pendente lite. The accused questioned the said Order contending that it is violative of the constitutional provision against an ex post facto law. Will you sustain the objection of the accused? '99 – Q6b

Anti-Hazing Law (R.A. No. 8049) What is hazing as defined by law? ’02 – Q18a Hazing, as defined by law, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.

NO, I will not sustain the objection of the accused. Suspension of the accused pendente lite is not violative of the constitutional provision against ex-post facto law. Ex-post facto law means making an innocent act a crime before it is made punishable.

What does the law require before initiation rites may be performed? ’02 – Q18b

What are the pre-conditions are necessary to be met or satisfied before preventive suspension may be ordered? ’99 – Q7c

Section 2 of R.A. No. 8049 (Anti-Hazing Law) requires that before hazing or initiation rites may be performed, notice to the school authorities or head of organizations shall be given seven (7) days before the conduct of such rites. The written notice shall indicate (a) the period of the initiation activities, not exceeding three (3) days; (b) the names of those to be subjected to such activities, and (c) an undertaking that no

The pre-conditions necessary to be met or satisfied before a suspension may be ordered are: (1) there must be proper notice requiring the accused to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to R.A. No. 3019, as

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers physical violence shall be employed by anybody during such initiation rites.

To obtain a conviction for highway robbery, the prosecution must prove that the accused were organized for the purpose of committing robbery indiscriminately. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. (See People v. Mendoza, G.R. No. 104461, 23 February 1996).

Anti-Hijacking Law (R.A. No. 6235) The accused hijacked an airplane and at gunpoint ordered the pilot to fly to Peking instead of to Davao, which was the plane’s destination. Since the pilot refused, the accused shot him to death. Afterwards, the accused was overpowered by the crew and the co-pilot was able to fly the place safely to Davao. That crime or crimes did the accused commit? ’75 – Q17

The Court of Appeals, not the Regional Trial Court, can issue a freeze order under the AMLA. ’10 – Q6 The freeze order issued by the Regional Trial Court is not correct, because jurisdiction to issue said freeze order is now vested with the Court of Appeals under Republic Act No. 9194, amending the AntiMoney Laundering Act (Republic Act No. 9160.) The Regional Trial Court is without jurisdiction to issue a freeze order of the money involved.

The accused is liable for the offense of hijacking which is an act inimical to civil aviation, since he compelled unlawfully a change in the course of the plane to Davao, which was its destination, to Peking, while the plane was in flight. Under the law, it is not essential that the hijacker should succeed in his purpose. The offense is punishable by death since the accused fired upon the pilot causing his death, and therefore the offense is accomplished by murder as the pilot did not have any chance to defend himself. It is assumed that the plane is an aircraft of Philippine registry (Sections 1 and 2, R.A. No. 6235.)

Definition of Money Laundering; Three (3) Stages in Money Laundering. ’10 – Q12 Money Laundering is “the process by which a person conceals the existence of unlawfully obtained money and makes it appear to have originated from lawful sources. The intention behind the transaction is to hide the beneficial owner of said funds and allows criminal organizations or criminals to enjoy the proceeds of such criminal activities.” The three (3) stages in money laundering are: 1. Placement/infusion or the physical disposal the criminal proceeds; 2. Layering or the separation of the criminal proceeds from their sources by creating layers of financial transactions to disguise such proceeds as legitimate and avoid the audit trail; and 3. Integration or the provision of apparent legitimacy to the criminal proceeds.

Anti-Money Laundering Law (R.A. No. 9160, as amended by R.A. No. 9194) A postal van containing mail matters, including checks and treasury warrants, was hijacked along a national highway by ten (10) men, two (2) of whom were armed. They used force, violence and intimidation against three (3) postal employees who were occupants of the van, resulting in the unlawful taking and asportation of the entire van and its contents. ’12 – QIV a) If you were the public prosecutor, would you charge the ten (10) men who hijacked the postal van with violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti -Highway Robbery Law of 1974? Explain your answer. (5%) SUGGESTED ANSWER: No. I would not charge the 10 men with the crime of highway robbery. The mere fact that the offense charged was committed on a highway would not be the determinant of the application of PD No. 532. If a motor vehicle, wither stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, the location of the vehicle at the time of the unlawful taking would not necessarily put the offense within the ambit of PD No. 532. In this case, the crime committed is violation of the Anti-Carnapping Act of 1972 (People vs. Puno, G.R. No. 97471, February 17, 1993). Moreover, there is no showing that the 10 men were a band of outlaws organized for the purpose of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another. What was shown is one isolated hijacking of a postal van. It was not stated in the facts given that the 10 men previously attempted at similar robberies by them to establish the “indiscriminate” commission thereof (Filoteo, Jr. vs. Sandiganbayan, G.R. No. 755943, October 16, 1996). ALTERNATIVE ANSWER: As a public prosecutor, I would charge the ten (10) men who hijacked the postal van with violation of PD 532. As oppose to brigandage under Article 306 of the RPC, highway robbery under PD 532 does not require that there be at least four armed persons forming a band of robbers. In this case, while there are ten (10) men who hijacked the postal van, only two (2) were armed. Hence, they may be charged with highway robbery under PD 532.

The statement that “For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. No. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes” is FALSE. ’09 – Q11e There is nothing in the law which requires that the accused must know the identities of the culprits involved in the commission of the predicate crimes. To establish liability under R.A. No. 9160, it is sufficient that proceeds of an unlawful activity are transacted, making them appear to have originated from legitimate sources. Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayor’s name and regularly deposited various amounts ranging from P500,000.00 to P1 Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito was actually a jueteng operator and the amounts he deposited were proceeds from his jueteng operations. What crime/s were committed? Who are criminally liable? ’05 – Q12 On the part of Don Gabito, the crimes committed were: 1. Money laundering under R.A. No. 9160 (Anti-Money Laundering Act of 2001), as amended by R.A. No. 9194, since the money proceeds from an unlawful activity, i.e., jueteng are transacted as though coming from a legitimate source; 2. Corruption of public officials under Article 212 of the RPC for having given the amounts that were deposited in an account which he opened in the Mayor’s name for no reason but for the public position or office held by the Mayor; and 3. Illegal gambling under P.D. No. 1602 (Prescribing Stiffer Penalties on Illegal Gambling) for being a jueteng operator. On the part of the Mayor, the crimes committed were: 1. Money laundering under the same laws above-mentioned if after learning that the money deposited in his account were proceeds of jueteng, he still continued using said funds;

b) If you were the defense counsel, what are the elements of the crime of highway robbery that the prosecution should prove to sustain a conviction? (5%) Under Section 2 of P.D. 532, highway robbery is defined as “(t)he seizure of any person for random, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine highway. Hence, the elements of highway robbery are: a. intent to gain; b. unlawful taking of property of another; c. violence against or intimidation of any person; d. committed on a Philippine highway.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers 2. Indirect Bribery for accepting such moneys deposited in his account by using them when they were given to him for no other reason except for his public position as a Mayor; and 3. Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) for receiving such gift from someone who may be affected by the functions of his office.

more to meet their bill. So, they decided to hail another taxicab and they again robbed driver T of his hard-earned money amounting to P1,000. On their way back to the beerhouse, they were apprehended by a police team upon the complaint of X, the driver of the first cab. They pointed to E as the mastermind. What crime or crimes, if any, did A, B, C, D and B commit? '00 – Q15b A. B, C, D and E are liable for two (2) counts of robbery under Article 294 of the RPC; not for highway Robbery under P.D. No. 532. The offenders are not brigands but only committed the robbery to raise money to pay their bill because it happened that they were short of money to pay the same.

Anti-Piracy and Anti-Highway Robbery (P.D. No. 532) Police Sgt. Diego Chan, being a member of the Theft and Robbery Division of the Western Police District and assigned to the South Harbor, Manila, was privy to and more or less familiar with the schedules, routes and hours of the movements of container vans, as well as the mobile police patrols, from the pier area to the different export processing zones outside Metro Manila. From time to time, he gave valuable and detailed information on these matters to a group interested in those shipments in said container vans. On several instances, using the said information as their basis, the gang hijacked and pilfered the contents of the vans. Prior to their sale to "fences" in Banawe, Quezon City and Bangkal, Makati City, the gang Informs Sgt, Chan who then inspects the pilfered goods, makes his choice of the valuable items and disposes of them through his own sources or "fences". When the hijackers were traced on one occasion and arrested, upon custodial investigation, they implicated Sgt. Chan and the fiscal charged them all, including Sgt. Chan as co-principals. Sgt. Chan, in his defense, claimed that he should not be charged as a principal but only as an accessory after the fact under P.D. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Act of 1972. Is the contention of Sgt. Chan valid and tenable? ’01 – Q8

While V was soundly asleep in his fishing boat then moored in the Pasig River near Jones Bridge, Manila, W beat V unconsciousness and thereafter took his cash and valuables. What crime or crime did W commit? ’77 – Q5b P.D. No. 532 punishes piracy in the Philippine waters and refers to any vessel or watercraft which includes boats used for fishing. Under the decree, piracy is committed not only by attacking or seizing any vessel but includes the taking away of personal belongings of a passenger irrespective of the value thereof by any person. Since W beat V to unconsciousness while he was sound asleep in his fishing boat then moored in the Pasig River near the Jones Bridge and then took his cash and valuables, the crime committed by W is piracy under P.D. No. 532. Anti-Plunder Act (R.A. No. 7080, as amended by R.A. No. 7659 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. ’17 – Q3 (a) May each of the above-named individuals be held liable for plunder? Explain your answer. (4%) SUGGESTED ANSWER (a) The act of receiving P50 Million by Governor Datu kickback in connection with any government contract or project for the development of an economic and tourism hub is a predicate crime of plunder. He is not liable, however, for plunder. To be held liable for plunder, the public officer must amass, accumulate or acquire ill-gotten wealth through a combination or series of overt or criminal acts. The word “combination” means a tleast two different predicate crimes; while the term “series” means at least two different predicate crimes; while the term “series” means at least two predicate crimes of the same kind (Ejercito v. Sandiganbayan, G.R. Nos. 157294095, November 30, 2006). A single predicate crime amounting to 50 million pesos is not plunder. The intention of the lawmakers is that if there is only one predicate crime, the offender has prosecuted under the particular crime which is already covered by existing laws. What is punishable under the law is “acts of plunder”, which means that there should be at least, two or more, predicate crimes

NO, the contention of Sgt. Chan is not valid or tenable because by express provision of P.D. No. 532, Section 4, a person who knowingly and in any manner, aids or protects highway robbers/brigands, such as giving them information about the movement of police officers or acquires or receives property taken by brigands, or who directly or indirectly abets the commission of highway robbery/brigandage, shall be considered as accomplice of the principal offenders and punished in accordance with the rules in the Revised Penal Code. Distinguish Highway Robbery under P.D. No. 532 from Robbery committed on a highway. '00 – Q15a Highway Robbery under P.D. No. 532 differs from ordinary Robbery committed on a highway in these respects: 1. In Highway Robbery under P.D. No. 532, the robbery is committed indiscriminately against persons who commute in such highways, regardless of the potentiality they offer; while in ordinary Robbery committed on a highway, the robbery is committed only against predetermined victims; 2. It is Highway Robbery under P.D. No. 532, when the offender is a brigand or one who roams in public highways and carries out his robbery in public highways as venue, whenever the opportunity to do so arises. It is ordinary Robbery under the Revised Penal Code when the commission thereof in a public highway is only incidental and the offender is not a brigand: and 3. In Highway Robbery under P.D. No. 532, there is frequency in the commission of the robbery in public highways and against persons travelling thereat; whereas ordinary Robbery in public highways is only occasional against a predetermined victim, without frequency in public highways. A, B, C, D and B were in a beerhouse along MacArthur Highway having a drinking spree. At about 1 AM, they decided to leave and so asked for the bill. They pooled their money together but they were still short of P2,000. E then orchestrated a plan whereby A, B, C and D would go out, flag a taxicab and rob the taxi driver of all his money while E would wait for them in the beerhouse. A. B, C and D agreed. All armed with balisongs, A, B, C and D hailed the first taxicab they encountered. After robbing X, the driver, of his earnings, which amounted to P1,000 only, they needed P1,000

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (See deliberation of Bicameral Committee on Justice, May 7, 1991).

(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%) SUGGESTED ANSWER (c) Governor Datu, Mayor Dolor and Bokal Diva are liable liable for violations of Section 3 (b) or RA No. 3019 in receiving money in connection with government contract or transaction for the development of an economic and tourism hub where they have the right to intervene under the law. Mr. Gangnam for giving money to the said public officers and Dee, who received kickbacks for her husband, Governor Dato, are also liable for violation of Section 3 (b) of RA No. 3019 on the basis of conspiracy (Go v. The Fifth Division, Sandiganbayan, G.R. No. 17602, April 13, 2007). Mayor Dolor and Bokal Diva are liable for violations of Section 3 (b) of RA No. 3019 for receiving money in connection with government contract or transaction for the construction of the Blank Sports Arena; or violation of Section 3 (e) for giving Mr. Gangnam, a private party, unwarranted benefits, advantage or preference through manifest partiality and is highly overpriced; or violation of Section 3 (g) for entering, on behalf of the Government, into any contract or transaction for such construction manifestly and grossly disadvantageous to the same. Mr. Gangnam for giving money to the said public officers or for entering such contract is also liable for violation of Section 3 of RA No. 3019 on the basis of conspiracy (Go v. The Fifth Division, Sandiganbaan, G.R. No. 17602, April 13, 2007). (d) What crimes under the Revised Penal Code, if any, were committed, specifying the persons liable therefor? Explain your answer. (4%) SUGGESTED ANSWER (d) Governor Datu, Mayor Dolo and Bokal Diva are liable for indirect birbery under Art. 211, RPC for receiving money from Mr. Gangnam offered to change by reason of their position as public officers while the letter is liable for corruption of public officer. Direct bribery is not committed since there is no showing that they received the money by virtue of an agreement to commit a crime or unjust act in connection with the development of an economic and tourism hub and construction of the Blank Sports Arena. The facts given above merely showed receipt of gifts. Meanwhile, Mr. Gangnam is liable for corruption of public office r under Article 212 of the RPC because of his act of giving gifts to the public officer under Article 212 of the RPC because of his act of giving gifts to the public officers.

The series acts of receiving by Mayor Dolor Kickback or gift in the amount of P25 million and P10 million in connection with any government contract or project for the development of an economic and tourism hub and for the construction of the Blank Sports Arena, respectively, are predicate crimes of plunder. However, the aggregate amount of ill-gotten wealth acquired is less than P50 million. Hence, plunder is not committed since element that the aggregate amount of ill-gotten wealth is at least P50 million is not present. Bokal Diva is liable for plunder because he acquired ill-gotten wealth in the aggregate amount of P50 million through a series of prediate crimes consisting of receipts of kickback or gift in the amount of P25 million in connection with any government contract or project for the development of an economic and tourism hub and for the construction of the Blank Sports Arena, respectively. Mr. Gangnam, for giving kickbacks to Bokal Diva, and Terry for depositing the money in his account for Bokal Diva are also liable for plunder. Under Ra. No. 7080, any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. (b)

Define wheel conspiracy and chain conspiracy. Is either or both kinds existent herein? Explain your answer. (4%) SUGGESTED ANSWER (c) In the case at bar, both type of conspiracy exists. The distribution of commissions or gifts by Mr. Gangnam and the acceptance of Governor Datu, Bokal Diva, Mayor Dolor is a type of wheel conspiracy where a single person, Mr. Gangnam, dealt individually with the public officials to commit the overt acts. The chain conspiracy, on the other hand, is evident in the overpricing of the sports complex through the facilitation of Bokal Diva, the conclusion of the agreements by Mayor Dolor, and the distribution of the gifts by Mr. Gangnam. ALTERNATIVE ANSWER (b) There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conspiracy. Under the wheel or circle conspiracy, there is a single person or group (the “hub”) dealing individually with two or more other persons or groups (the “spokes”) (Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007). In wheel conspiracy involving plunder, the hub or the principal plunder amasses, accumulates and acquires ill-gotten wealth in connivance with other or spokes. In plunder, the hub or principal plunder must be, and is, a public officer (GMA v. People, G.R. No. 220598, July 19, 2016); but the spokes can be a private individual Nerile v. People, G.R. No. 213455, August 11, 2015). In this case, there is no wheel conspiracy involving plunder. Mr. Gangnam cannot be considered as a hub since he is not a public officer.

City Engr. A, is the city engineer and the Chairman of the Bids and Awards Committee (BAC) of the City of Kawawa. In 2009, the City of Kawawa, through an ordinance,allotted the amount of P100 million for the construction of a road leading to the poblacion. City Engr. A instead, diverted the construction of the road leading to his farm. Investigation further showed that he accepted money in the amount of P10 million each from three (3) contending bidders, who eventually lost in the bidding. Audit report likewise showed that service vehicles valued at P2 million could not be accounted for although reports showed that these were lent to City Engr. A’s authorized drivers but the same were never returned. Further, there were funds under City Engr. A’s custody amounting to P10 million which were found to be missing and could not be accounted for. In another project, he was instrumentalin awarding a contract for the construction of a city school building costing P10 million to a close relative, although the lowest bid was P8 million. Investigation also revealed that City Engr. A has a net worth of more than P50 million, which was way beyond his legitimate income. –’14- Q3 (A) If you are the Ombudsman, what charge or charges will you file against City Engr. A? A: If I am the Ombudsman, I would file a case of Plunder under RA No. 7080 against City Engineer A. It is very clear from the facts given that all the elements of plunder are present, namely: 1. The offender is a public officer holding a public office in the Government of the Republic of the Philippines; 2. The offender amassed, accumulated, or acquired ill-gotten wealth through a combination of overt or criminal acts of misuse, misappropriation, conversion or malversation of

Under the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which 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 (Fernan, Jr. v. People, G.R. No. 14597, August 24, 2007). There is chain conspiracy involving plunder in this case. Bokul Diva conspired with Mr. Gangnam in committing plunder, and then, he conspired with Mr. Gangnam in committing plunder, and then, he conspired with Terry, his secretary, In hiding his ill-gotten wealth, by depositing the proceeds of plunder under the account of the latter. Because of the chain conspiracy, Bokal Diva, Mr. Gangnam and Terry are liable for plunder. Under Ra No.7080, any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offence.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers public funds, receiving kickbacks from persons in connection with a government contract or project by reason of his office or position and illegally or fraudulently conveying or disposing of assets belonging to the National Government or any of its subdivisions; and 3. The aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50 million. (B) Suppose the discovered net worth of City Engr. Ais less than P50 million, will your answer still be the same? Yes, the answer will still be the same since in plunder the basis is the combination of criminal acts or series of acts, which constitutes the accumulation of more than P50million. The predicate crimes are already absorbed in the crime of plunder. City Engineer A’s net worth being less than P50million is not determinative of his liability, as long as the wealth amassed/accumulated is more than P50M. 1.

2.

(B) The check, drawn and issued in the Philippines, was dishonored by the drawee bank in a foreign country. (C) The check was presented to the bank for payment 6 months after the date of issue. (D) The drawer of the dishonored check paid its value within 5 days from notice of dishonor. A asked financial support from her showbiz friend B who accommodated her by issuing her a post-dated check in the sum of P90,000. Both of them knew that the check would not be honored because B’s account had just been closed. The two then approached trade C who they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000 with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the check for payment on due date, it was dishonored because the account had already been closed. What action/s may C commence against A and B to hold them to account for the loss of her P85,000? ’10 – Q8

Through kickbacks, percentages or commissions and other fraudulent schemes /conveyances and taking advantage of his position, Andy, a former mayor of a suburban town, acquired assets amounting to P10 billion which is grossly disproportionate to his lawful income. Due to his influence and connections and despite knowledge by the authorities of his Ill-gotten wealth, he was charged with the crime of plunder only after twenty (20) years from his defeat in the last elections he participated in. ’93 – Q4

A criminal action for violation of BP 22 may be filed against B who drew the post-dated check against a closed bank, for value paid by C, and with knowledge at the time he issued the check that the account thereof is already closed. A cannot be held liable under BP 22 because he was a mere endorser of B’s check to C who exchanged the check with cash. BP 22 does not apply to endorser of checks. Hence, only a civil action may be filed by C against A to recover the P85,000. Although a simultaneous action for estafa is authorized by law for the issuance of a worthless check, under the given facts, the check was discounted and thus issued is a credit transaction for a pre-existing indebtedness. Criminal liability for estafa does not arise when a check has been issued in payment for a pre-existing debt.

May Andy still be held criminally liable? ’93 – Q4-1

Andy will not be criminally liable because Section 6 of R.A. No. 7080 provides that the crime punishable under this Act shall prescribe in twenty years and the problem asked whether Andy can still be charged with the crime of plunder after 20 years. 3.

A, a businessman, borrowed P500,000 from B, a friend. To pay the loan, A issued a post-dated check to be presented for payment 30 days after the transaction. Two days before the maturity date of the check, A called up B and told him not to deposit the check on the date stated on the face thereof, as A had not deposited in the drawee bank the amount needed to cover the check. Nevertheless, B deposited the check in question and the same was dishonored of insufficiency of funds. A failed to settle the amount with B in spite of the latter's demands. Is A guilty of violating B.P. Blg. 22, otherwise known as the Bouncing Checks Law? '02 – Q13

Can the State still recover the properties and assets that he illegally acquired, the bulk of which is in the name of his wife and children? ’93 – Q4-2

YES, because Section 6 provides that recovery of properties unlawfully acquired by public officers from them or their nominees or transferees shall not be barred by prescription, laches or estoppel. Bouncing Checks Law (B.P. Blg. 22)

YES, A Is liable for violation of B.P. Blg. 22 (Bouncing Checks Law), Although knowledge by the drawer of insufficiency or lack of funds at the time of the issuance of the check is an essential element of the violation, the law presumes prima facie such knowledge, unless within five (5) banking days of notice of dishonor or non-payment, the drawer pays the holder thereof the amount due thereon or makes arrangements for payment in full by the drawee of such checks. A mere notice by the drawer A to the payee B before the maturity date of the check will not defeat the presumption of knowledge created by the law; otherwise, the purpose and spirit of B.P. 22 will be rendered useless.

Frank borrowed P1,000,000 from his brother Eric. To pay the loan, Frank issued a post-dated check to be presented for payment a month after the transaction. Two days before maturity, Frank called Eric telling him he had insufficient funds and requested that the deposit of the check be deferred. Nevertheless, Eric deposited the check and it was dishonored. When Frank failed to pay despite demand, Eric filed a complaint against him for violation of Batas Pambansa Big. 22 (The Bouncing Checks Law). Was the charge brought against Frank correct? (7%) ’13-Q10 SUGGESTED ANSWER: Yes, the charge brought against Frank is correct. Violation of Batas Pambansa Blg. (E.P.) 22 is malum prohibitum which is committed by mere issuance of a check without sufficient funds. Good faith is not a defense. As long as the check was issued on account or for value, the purpose for which the check was issued, the terms and conditions relating to its issuance are irrelevant to the prosecution of the offender. For this reason, the request of Frank to defer the deposit of the check as it has insufficient funds will not militate against his prosecution for B.P. Big. 22. Despite notice, Frank can still be charged.

The accused was convicted under B.P. Blg. 22 for having issued several checks which were dishonored by the drawee bank on their due date because the accused closed her account after the issuance of checks. On appeal, she argued that she could not be convicted under B.P. Blg. 22 by reason of the closing of her account because said law applies solely to checks dishonored by reason of insufficiency of funds and that at the time she issued the checks concerned, she had adequate funds in the bank. While she admits that she may be held liable for estafa under Article 315 of the RPC, she cannot however be found guilty of having violated Blg. 22. Is her contention correct? '96 – Q7(1)

Moreover, if what is charged is estafa, Frank, being a brother of the offended party, cannot be held criminally liable under Art. 332, RPC.

NO, the contention of the accused is not correct. As long as the checks issued were issued to apply on account or for value, and was dishonored upon presentation for payment to the drawee bank for lack of insufficient funds on their due date, such act falls within the ambit of B.P. Blg. 22. Said law expressly punishes any person who may have insufficient funds in the drawee bank when he issues the check, but fails to keep sufficient funds to cover the full amount of the check when

Which of the following circumstances of dishonor of a check can be a basis for prosecution under the bouncing checks law? ’11 Q58 (A) The check was returned unpaid with stamp "stop payment," although the drawer’s deposit was sufficient.

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers presented to the drawee bank within ninety (90) days from the date appearing thereon.

or accept directly or indirectly any gift, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or any transaction which may be affected by the functions of their office.

What is a memorandum check? Is the “bouncing” thereof within the purview of B.P. Blg. 22? '95 – Q4(1)

Another Suggested Answer: A “Memorandum Check” is an ordinary check, with the word “Memorandum”, “Memo” or “Mem” written across its face, signifying that the maker or drawer engages to pay its holder absolutely thus partaking the nature of a promissory note. It is drawn on a bank and is a bill of exchange within the purview of Section 185 of the Negotiable Instruments Law (People v. Nitafan, 215 SCRA 79 [1992].) YES, a memorandum check is covered by B.P. Blg. 22 because the law covers any check whether it is an evidence of Indebtedness, or in payment of a pre-existing obligation or as a deposit or guarantee (People v. Nitafan, 215 SCRA 79 [1992].)

The solicitation for her office Christmas Party violated P.D. No. 46 which makes it punishable for any public official or employee to receive, directly or indirectly, any gift, present or other valuable thing on any occasion, including Christmas when such gift or present is given by reason of her official position. Another Suggested Answer: YES, Commissioner Torres committed an impropriety and violated Section 211 of the RPC on indirect bribery. She accepted gifts by reason of her office

Jane is a money lender. Edmund is a businessman who has been borrowing money from Jane by rediscounting his personal checks to pay his loans. In March 1989, he borrowed P100,000 from Jane and issued to her a check for the same amount. The check was dishonored by the drawee bank for having been drawn against a closed account. When Edmund was notified of the dishonor of his check he promised to raise the amount within five days. He failed. Consequently, Jane sued Edmund for violation of the Bouncing Checks Law (BP. Blg. 22). The defense of Edmund was that he gave the check to Jane to serve as a memorandum of his indebtedness to her and was not supposed to be encashed. Is the defense of Edmund valid? '95 – Q4(2)

Robert Sy, a well known businessman and a founding member of the Makati Business Club, aside from being a classmate of the newly-elected President of the Philippines, had Investments consisting of shares of stocks in the Urban Bank, the PNB, the Rural Bank of Caloocan City and his privately-owned corporation, the RS Builders Corp. and Trans-Pacific Air. After the President had taken his oath and assumed his office, he appointed Robert as Honorary Consul to the Republic of Vietnam. Robert took his oath before the President and after furnishing the DFA with his appointment papers, flew to Saigon, now Ho Chi Min City, where he organized his staff, put up an office and stayed there for three months attending to trade opportunities and relations with local businessman. On the 4th month, he returned to the Philippines to make his report to the President. However, the Anti-Graft League of the Philippines filed a complaint against Robert for (1) falling to file his Statement of Assets and Liabilities within thirty (30) days from assumption of office; (2) failing to resign from his businesses, and (3) falling to divest his shares and investments in the banks and corporations owned by him, as required by the Code of Conduct and Ethical Standards for Public Officials and Employees. Will the complaint prosper? ’01 – Q12

The defense of Edmund is NOT valid. A memorandum check upon presentment is generally accepted by the bank. It does not matter whether the check is in the nature of a memorandum as evidence of indebtedness. What the law punishes is the mere issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating thereto. The mere act of issuing a worthless check is a malum prohibitum. The understanding that the check will not be presented at the bank but will be redeemed by the maker when the loan falls due is a mere private arrangement which may not prevail to exempt it from the penal sanction of B.P. Blg. 22 (People v. Nitafan, 215 SCRA 79 [1992].)

The complaint will not prosper because the Code of Conduct and Ethical Standards for Public Officials and Employees (R.A. No. 6713), expressly exempts those who serve the Government in an honorary capacity from filing Statements of Assets and Liabilities, and from resigning and divesting themselves of interest from any private enterprise (Sections 8A and 9).

Exidor issued a check in payment of goods delivered to him by Virginia. Unfortunately the check bounced for lack of sufficient funds. 1. ’90 – Q10 1. What is the criminal liability of Exidor? ’90 – Q10-1 Exidor is liable under the Bouncing Checks Law (B.P. Blg. 22) and for estafa under Article 315, par. 2(d), RPC. 2.

Alternative Answer:

Suppose the bouncing check was post-dated, will your answer be the same? ’90 – Q10-2

Yes, the complaint will prosper under Section 7 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended), which requires all public officers within 30 days from assuming public office to file a true, detailed sworn statement of assets and liabilities. Violations of this law are mala prohibita which admits of no excuses.

He will only be liable under the Bouncing Checks Law (B.P. Blg. 22). Code of Conduct of Public Officials and Employees (R.A. No. 6713)

Dangerous Drugs Act (R.A. No. 9165) Dimas was arrested after a valid buy-bust operation. Macario, the policeman who acted as poseur-buyer, inventoried and photographed ten (10) sachets of shabu in the presence of a barangay tanod. The inventory was signed by Macario and the tanod, but Dimas refused to sign. As Macario was stricken with flu the day after, he was able to surrender the sachets to the PNP Crime Laboratory only after four (4) days. During pre-trial, the counsel de oficio of Dimas stipulated that the substance contained in the sachets examined by the forensic chemist is in fact methamphetamine hydrochloride or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned the admissibility of the evidence because Macario failed to observe the requisite "chain of custody" of the alleged "shabu" seized from him. On behalf of the State, the Solicitor General claimed that despite non-compliance with some requirements, the

Commissioner Marian Torres of the BIR wrote solicitation letters addressed to the Filipino-Chinese Chamber of Commerce and Industry and to certain CEOs of various multinational corporations requesting donations of gifts for her office Christmas party. She used the Bureau's official stationery. The response was prompt and overwhelming so much so that Commissioner Torres' office was overcrowded with rice cookers, radio sets, freezers, electric stoves and toasters. Her staff also received several envelopes containing cash money for the employees' Christmas luncheon. Has Commissioner Torres committed any impropriety or irregularity? What laws or decrees did she violate? ’06 – Q8 YES, Commissioner Torres committed impropriety. She violated Section 7(d) of R.A. No. 6713, otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and Employees.” Section 7(d) mandates that public officials and employees shall not solicit

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers prosecution was able to show that the integrity of the substance was preserved. Moreover, even with some deviations from the requirements, the counsel of Dimas stipulated that the substance seized from Dimas was shabu so that the conviction should be affirmed.

he had completely been rehabilitated and did not want to have anything to do with drugs anymore. But he was prevailed upon to help when SP03 Relio explained that only he could help capture Rado because he used to be his customer. SP03 Relio then gave Emilo the marked money to be used in buying shabu from Rado. The operation proceeded. After Emilo handed the marked money to Rado in exchange for the sachets of shabu weighing 50 grams, and upon receiving the pre-arranged signal from Ernilo, SP03 Relio and his team members barged in and arrested Rado and Ernilo, who were both charged with violation of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

What is the "chain of custody" requirement in drug offenses? (2.5%) ’16 – Q14(a)

To establish the chain of custody, the prosecution must show the movements of the dangerous drugs from its confiscation up to its presentation in court. The purpose of establishing the chain of custody is to ensure the integrity of the corpus delicti (People v. Magat, G.R. No. 179939, 29 September 2008). The following links that must be established in the chain of custody in a buy-bust situation are: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court (People v. Kamad, G.R. No. 174198, 29 January 2010).

a) What defense, if any, may Ernilo invoke to free himself from criminal liability? Explain. (2.5%)

Answer: Ernilo may invoke Section 33, Art, II. RA 9165 or the “Comprehensive Drugs Act of 2002”. He may have violated Section II of RA 9165 for possession of shabu but he is immune from prosecution and punishment because of his role as the poseur-buyer in the entrapment operation. There was virtually an instigation. He is exempted from prosecution or punishment because the information obtained from him by the PDEA agents, who had no direct and concrete evidence of Rado’s drug-pushing activities, led to the whereabouts, identity and arrest of Rado. So long as the information and testimony given are pleaded and proven, Ernilo cannot be prosecuted for violation of RA 9165.

To establish the first link in the chain of custody, and that is the seizure of the drug from the accused, the prosecution must comply with Section 21 of RA No. 9165, which requires that the apprehending officer after the confiscation of drug must immediately physically inventory and photograph the same in the presence of the accused or the person from whom such items were confiscated, or his representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof and within twenty-four (24) hours upon such confiscation, the drug shall be submitted to the PDEA Forensic Laboratory for examination.

b) May Rado adopt as his own Ernilo's defense? Explain. (2.5%) ’15-Q9 Answer: No. First, an entrapment operation is a valid means of arresting violators of RA 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Second, the immunity does not extend to violators of Section 5 of RA 9165 or the sale of shabu (sec. 33, RA 9165). Lastly, he was the offender of the crime and apparently the most guilty of the offense.

[b] Rule on the contention of the State. (2.5%) ’16 – Q14(b)

A, a young boy aged sixteen (16) at the time of the commission of the crime, was convicted when he was already seventeen (17) years of age for violation of Section 11 of R.A. 9165 or Illegal Possession of Dangerous Drugs for which the imposable penalty is life imprisonment and a fine. Section 98 of the same law provides that if the penalty imposed is life imprisonment to death on minor offenders, the penalty shall be reclusion perpetuato death. Under R.A. 9344, a minor offender is entitled to a privilege mitigating circumstance. ‘14-Q25 (A) May the privilege mitigating circumstance of minority be appreciated considering that the penalty imposed by law is life imprisonment and fine? A: Yes. Minority as a privileged mitigating circumstance is always considered as a modifying circumstance in the imposition of penalty of a child in conflict with the law. (B) Is the Indeterminate Sentence Law applicable considering that life imprisonment has no fixed duration and the Dangerous Drugs Law is malum prohibitum? A: Yes. The Indeterminate Sentence Law is applicable even to special laws. Since life imprisonment was converted into reclusion perpetua, which in turn was graduated to reclusion temporal, the Indeterminate Sentence Law is inapplicable (People v. Montalba)

The contention of the State is meritorious. Macario, the policeman failed to comply with Section 21 of RA No 9165 since the inventory and photograph of the drugs was only made in the presence of barangay tanod and the same was not submit PNP Crime Laboratory within 24 hours. The rule is settled that failure to strictly comply with Section 21(1), Article II of R.A. No. 9165 does not necessarily render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. The most important factor is the preservation of the integrity and evidentiary value of the seized item. Moreover, the issue of noncompliance with Section 21 of RA No. 9165 cannot be raised for the first time on appeal {People v. Badillo, G.R. No. 218578, August 31, 2016).

The Philippine Drug Enforcement Agency (PDEA) had intelligence reports about the drug pushing activities of Rado, but could not arrest him for lack of concrete evidence. SP03 Relio, a PDEA team leader, approached Emilo and requested him to act as poseurbuyer of shabu and transact with Rado. Emilo refused, saying that

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers (C)

If the penalty imposed is more than six (6) years and a notice of appeal was filed by Aand given due course by the court, may A still file an application for probation? A: Yes. A my still file an application for probation even if he filed a notice of appeal. Section 42 of RA No. 9344 provides that “The court may, after it shall have been convicted and sentenced a child in conflict with the law, and upon application at ay time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child.” The said section also provides that the Probation Law is amended accordingly. The phrase “at any time” mentioned in Section 42 means the child in conflict with the law may file application for probation at any time, even beyond the period for perfecting an appeal and even if the child has perfected the appeal from the judgment of conviction. (D) If probation is not allowed by the court, how will Aserve his sentence? If probation is not allowed by the court, the minor shall serve his sentence in the agricultural camp or other training facility in accordance with Section 51 of No. 9344 (sic).

to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents had been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and PO3 Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later charged. What are their respective criminal liabilities? '06 – Q16 Chief Inspector Samuel Gamboa and PO3 Pepito Lorbes incur criminal liability under Article 11, Section 4, last par., of R.A. No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002.” They acted as “protector/coddler” to the unlawful bringing into the Philippines of the dangerous drugs. A “protector/coddler” refers to any person who uses his power or position in, inter alia, facilitating the escape of any person whom he knows or believes, has violated the Dangerous Drugs Law, in order to prevent the arrest, prosecution and conviction of the violator. The two police officers are criminally liable for violation of Section 27 of the same law for misappropriation or failure to account for the confiscated or seized dangerous drugs. On the other hand, Dante Ong is criminally liable for the illegal importation or bringing into the Philippines of the dangerous drugs (Article 11, Section 4, R.A. No. 9165.)

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section, R.A. No. 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bus operation failed to observe the requisite “chain of custody” of the evidence confiscated and/or seized from him. What is the “chain of custody” requirement in drug cases? What is its rationale? What is the effect of failure to observe the requirement? ’09 – Q14

Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of R.A. No. 9165 for the possession of “shabu” and violation of Section 15, Article II of R.A. No. 9165 for the use of marijuana. 1. Are the charges proper?

“Chain of custody” requirement in drug offenses refers to the duly recorded, authorized movement and custody of seized dangerous drugs, controlled chemicals, plant sources of dangerous drugs, and laboratory equipment for dangerous drugs from the time of confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic laboratory for examination, to its safekeeping and eventual presentation/offer in court as evidence of the criminal violation, and for destruction (Dangerous Drugs Board Regulation No. 1, Series of 2002.) Its rationale is to preserve the authenticity of the corpus delicti or body of the crime by rendering it improbable that the original item seized/confiscated in the violation has been exchanged or substituted with another or tampered with or contaminated. It is a method of authenticating the evidence as would support a finding beyond reasonable doubt that the matter is what the prosecution claims to be. Failure to observe the “chain of custody” requirement renders the evidence questionable, not trustworthy and insufficient to prove the corpus delicti beyond reasonable doubt. Hence, Tommy would be acquitted on reasonable doubt.

The charge of possession of shabu is proper as the mere possession of such drug is punishable, but the charge of use of marijuana is not proper as Section 15 of R.A. No. 9165 (Comprehensive Dangerous Act of 2002) expressly excludes penalties for “use” of dangerous drugs when the person tested “is also found to have in his possession such quantity of any dangerous drug” provided for in Section 11 of such Act. 2.

So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? '05 – Q13

NO, because Section 23 of R.A. No. 9165 expressly provides that “Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.” For this reason, Obie Juan cannot be allowed to plead to a lesser offense.

Tiburcio asked Anastacio to join the group for a “session”. Thinking that it was for a mah-jong session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio discovered that it was actually a shabu session. At that precise time, the place was raided by the police, and Anastacio was among those arrested. What crime can Anastacio be charged with, if any? ’07 – Q2

MNO, who is 30 years old, was charged as a drug pusher under the Comprehensive Dangerous Drugs Act of 2002. During pretrial, he offered to plead guilty to the lesser offense concerning use of dangerous drugs. Should the Judge allow MNO's plea to the lesser offense? '04 – Q2b

Anastacio may not be charged of any crime. Section 7 of R.A. No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, punishes employees and visitors of a den, dive, or resort where dangerous drugs are used in any form. But for a visitor of such place to commit the crime, it is a requisite that he “is aware of the nature of the place as such and such knowingly visit the same.” These requisites are absent in the facts given.

NO, the Judge should not allow MNO's plea to a lesser offense, because plea bargaining in prosecutions of drug-related cases is no longer allowed by Rep. Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002, regardless of the imposable penalty.

After receiving reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR 181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his attaché case. Upon inspection inside the Immigration holding area, the attaché case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attaché case and boarded him in an unmarked car driven by PO3 Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner EDSA, Chief Inspector Gamboa ordered PO3 Lorbes

A and his fiancée B were walking in the plaza At about 9 AM in the morning, a Narcom Group laid a plan to entrap and apprehend A, a long suspected drug dealer, through a “buy-bust” operation. At the appointed time, the poseur-buyer approached A who was then with B. A marked P100 bill was handed over to A who in turn, gave the poseur-buyer one (1) tea bag of marijuana leaves. The members of the team, who were then positioned behind thick leaves, closed in but evidently were not swift enough since A and B were able to run away. Two days later, A

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers was arrested in connection with another incident. It appears that during the operations, the police officers were not able to seize the marked money but were able to get possession of the marijuana tea bag. A was subsequently prosecuted for violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act, During the trial, the marked money was not presented. Can A be held liable? '00 – Q13b

a) b)

Those who are recidivists. Those whose maximum term of imprisonment exceeds one (1) year. Those convicted of inciting to sedition. Those convicted of misprision of treason.

c) d) SUGGESTED ANSWER: d) Those convicted of misprision of treason. Recidivists, those convicted of indicting to sedition and those whose term of imprisonment exceed one year are entitled to the benefits of the Indeterminate Sentence Law; while those convicted of misprision of treason are not.

YES. A can be held liable. The absence of the marked money will not create a hiatus in the prosecution's evidence as long as the sale of the dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. There was a perfected contract of sale of the drug (People v. Ong Co, 245 SCRA 733 [1995]; People v. Zervoulakos, 241 SCRA 625 [1995].)

What is the nature of the circumstance which is involved in the imposition of the maximum term of the indeterminate sentence? ’12 – Q23 a) qualifying circumstance; b) aggravating circumstance; c) modifying circumstance; d) analogous circumstance. SUGGESTED ANSWER: c) modifying circumstance; Under the Indeterminate Sentence Law (ISL) the court shall sentence the accuses 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 Revised Penal Code. The plain terms of the ISL how that the legislature did not intend to limit “attending circumstances” as referring to Articles 13 and 14 of the RPC. If the legislature intended that the “attending circumstances” under the ISL be limited to Articles 13 and 14, then it could have simply so stated, The wording of the law clearly permits others modifying circumstances outside Articles 13 and 14 of the RPC to be treated as “attending circumstances” for purposes of the application of the ISL, such as quasirecidivism and circumstance involving incremental penalty rule in estafa and theft (People vs. Temporada, G.R. No. 173473, December 17, 2008, En banc).

Illegal Possession of Firearms X, Y and Z agreed among themselves to attack and kill A, a police officer, but they left their home-made guns in their vehicle before approaching him. What crime have they committed? ’11 – Q54 (A) Conspiracy to commit indirect assault. (B) Attempted direct assault. (C) Conspiracy to commit direct assault. (D) Illegal possession of firearms. PH killed OJ, his political rival in the election campaign for Mayor of their town. The Information against PH alleged that he used an unlicensed firearm in the killing of the victim, and this was proved beyond reasonable doubt by the prosecution. The trial court convicted PH of two crimes: murder and illegal possession of firearms. Is the conviction correct? ’04 – Q8a NO, the conviction of PH for two crimes, murder and illegal possession of firearm is not correct. Under the new law on illegal possession of firearms and explosives, R.A. No. 8294, a person may only be criminally liable for illegal possession of firearm if no other crime is committed therewith; if a homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an aggravating circumstance. PH therefore may only be convicted of murder and the use of an unlicensed firearm in its commission may only be appreciated as a special aggravating circumstance, provided that such use is alleged specifically in the information for Murder.

AA was convicted of proposal to commit treason. Under Article 115 of the Revised Penal Code, proposal to commit treason shall be punished by prision correccional and a fine not exceeding P5,000.00. Is the Indeterminate Sentence Law applicable to AA? ’12 - Q47 a) Yes. The Indeterminate Sentence Law is applicable to AA because the maximum of prision correccional exceeds one ( 1) year. b) Yes. The Indeterminate Sentence Law is applicable to AA because there is no showing that he is a habitual delinquent. c) No. The Indeterminate Sentence Law is not applicable to AA considering the penalty imposable for the offense of which he was convicted. d) No. The Indeterminate Sentence Law is not applicable considering the offense of which he was convicted. SUGGESTED ANSWER: d) No. The Indeterminate Sentence Law is not applicable considering the offense of which he was convicted. The Indeterminate Sentence Law shall not apply to persons convicted of proposal to commit treason (Section 2 of the Indeterminate Sentence Law). 1.

A has long been wanted by the police authorities for various crimes committed by him. Acting on an information by a tipster, the police proceeded to an apartment where A was often seen. The tipster also warned the policemen that A was always armed. At the given address, a lady who introduced herself as the elder sister of A, opened the door and let the policemen in inside, the team found A sleeping on the floor. Immediately beside him was a clutch bag which, when opened, contained a .38 caliber paltik revolver and a hand grenade. After verification, the authorities discovered that A was not a licensed holder of the .38 caliber paltik revolver. As for the hand grenade, it was established that only military personnel are authorized to carry hand grenades. Subsequently, A was charged with the crime of Illegal Possession of Firearms and Ammunition. During trial, A maintained that the bag containing the unlicensed firearm and hand grenade belonged to A, his friend, and that he was not in actual possession thereof at the time he was arrested. Are the allegations meritorious? '00 – Q13a

Chris Brown was convicted of a complex crime of direct assault with homicide aggravated by the commission of the crime in a place where public authorities are engaged in the discharge of their duties. The penalty for homicide is reclusion temporal. On the other hand, the penalty for direct assault is pns10n correccional in its medium and maximum periods. What is the correct indeterminate penalty? ’12 – Q13 a) Twelve (12) years of prision mayor as minimum to twenty (20) years of reclusion ten1poral as maximum. b) Ten ( 1 0) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. c) Eight (8) years of prision mayor as minimum to eighteen (18) years and four (4) months of reclusion temporal as maximum. d) Twelve (12) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. SUGGESTED ANSWER:

A's allegations are not meritorious. Ownership is not an essential element of the crime of illegal possession of firearms and ammunition. What the law requires is merely possession, which includes not only actual physical possession but also constructive possession where the firearm and explosive are subject to one's control and management (People v. De Grecia, 233 SCRA 716 [1994]; U.S. v. Juan, 23 Phil. 105: People v. Soyag, 110 Phil. 565 [1960].) Indeterminate Sentence Law (Act No. 4103, as amended) Who among the following convicts are not entitled to the benefits of the Intermediate Sentence Law? ’12 – Q6

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers a) Twelve (12) years of prision mayor as minimum to twenty (20) years of reclusion ten1poral as maximum. In People v. Rillorta, G.R. No. 57415, December 15, 1989, and in People v. Recto, G.R. No. 129069, October 17, 2001, the Supreme Court En Banc found the accused guilty of the complex crime of homicide with assault upon a person in authority and sentenced him to suffer an indeterminate penalty ranging from twelve (12) years of prision mayor, as minimum, to twenty years of reclusion temporal, as maximum.

2.

While serving sentence, Macky entered the prohibited area and had a pot session with Ivy (Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of use of prohibited substances? ’07 – Q4

NO, Macky is not entitled to the benefit of the Indeterminate Sentence Law (Act No. 4103, as amended) for having evaded the sentence which banished or placed him on destierro. Section 2 of said law expressly provides that the law shall not apply to those who shall have “evaded sentence”.

What is the fundamental principle in applying and interpreting criminal laws, including the Indeterminate Sentence Law? (5%) ’12 – QVIa The fundamental principle in interpreting and applying penal laws is the principle of pro reo. The phrase “in dubio pro reo” means “when in doubt, for the accused.” (Interstate Estate of Gonzales vs. people, G.R. No. 181409, February 11, 2010). In dubio pro reo. When in doubt, rule for the accused. This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt. (See People v. Temporada, G.R. No. 173473).

Alternative Answer: No, because the penalty for use of any dangerous drug by a first offender is not imprisonment but rehabilitation in a government center for a minimum period of six (6) months (Section 15, R.A. No. 9165.) The Indeterminate Sentence Law does not apply when the penalty is imprisonment not exceeding one (1) year. Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months, as minimum, to 3 years, as maximum. State with reasons whether the court may correctly impose the following penalties: 1. A straight penalty of 10 months;

How is the Indeterminate Sentence Law applied in imposing a sentence? (5%) ’12 - QVIb If crime is punishable under the Revised Penal Code, 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. If the offense is punishable under special 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 (Section 1 of the Act 4103).

The court may validly impose a straight penalty of 10 months imprisonment because the penalty prescribed by law is imprisonment of 6 months to 3 years, and the Indeterminate Sentence Law does not apply when the penalty imposed is imprisonment which does not exceed one year. Alternative Answer: Yes, the trial court may impose a straight penalty of ten months. The Indeterminate Sentence Law applies to crimes punished either by the RPC or by special laws, where the maximum imprisonment exceeds one year.

The judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight of penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel contends that the Indeterminate Service Law should apply and a penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only must be imposed. Who of the three is on the right track?’10 – Q1

2.

6 months, as minimum, to 11 months, as maximum;

A prison term of 6 months as minimum, to 11 months, as maximum may not be imposed by the court because the Indeterminate Sentence Law does not apply when the penalty imposed as maximum of the sentence is imprisonment which does not exceed one (1) year. Obviously, the Indeterminate Sentence Law has been applied where the sentence imposed reflects a minimum and a maximum.

None of the contentions is correct because the Indeterminate Service Law (Act No. 4103), as amended) has not been followed. The imposition of penalty for the crime of homicide, which is penalized by imprisonment exceeding one (1) year and is divisible, is covered by the Indeterminate Service Law. The said law requires that the sentence in this case should reflect a minimum term for purposes of parole and a maximum term fixing the limit of the imprisonment. Imposing a straight penalty is incorrect.

Alternative Answer: No, because the Indeterminate Sentence Law cannot be applied where the maximum period of imprisonment imposed, which is eleven months, does not exceed one year.

Macky, a security guard, arrived home late one night after rendering overtime. He was shocked to see Joy, his wife, and Ken, his best friend, in act of having sexual intercourse, Macky pulled out his service gun then shot and killed Ken. Macky was charged with murder for the death of Ken. The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 247 of the RPC. The court also ordered Macky to pay indemnity to the heirs in the amount of P50,000. 1. Did the court correctly order Macky to pay indemnity even though he was exonerated of murder?

3.

A straight penalty of 2 years. '05 – Q3(1)

The court may not validly impose a straight penalty of two years because the Indeterminate Sentence Law requires the court to set a minimum and a maximum of the sentence where the imprisonment to be imposed already exceeds one (1) year, unless the offender is disqualified from the benefits of the said Law. Alternative Answer: No, because a straight penalty may be imposed only up to a maximum imprisonment of one (1) year. Here, it is two years. Hence, there is a need to impose an indeterminate sentence, the minimum term of which shall not be less than 6 months while the maximum term shall not exceed 3 years (People v. Peña, 80 SCRA 589 [1977].)

NO, the court did not act correctly in ordering the accused to indemnify the victim. Since the killing of Ken was committed under the exceptional circumstances in Article 247 of the Revised Penal Code, it is the consensus that no crime was committed in the light of the pronouncement in People v. Cosicor, 79 Phil. 672 [1947], that banishment (destierro) is intended more for the protection of the offender rather than the as a penalty. Since the civil liability under the Revised Penal Code is the consequence of criminal liability, there would be no legal basis for the award of indemnity when there is no criminal liability.

How are the maximum and the minimum terms of the indeterminate sentence for offenses punishable under the RPC determined? '02 – Q3a For crimes punished under the Revised Penal Code, the maximum term of the indeterminate sentence shall be the penalty properly

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers imposable under the same Code after considering the attending mitigating and/or aggravating circumstances according to Article 64 of said Code. The minimum term of the same sentence shall be fixed within the range of the penalty next lower in degree to that prescribed for the crime under the said Code.

The Indeterminate Sentence Law provides for an indeterminate sentence which has a minimum and a maximum. After the prisoner has served the minimum, depending upon his conduct and behavior during confinement, he may be released on parole. The law, therefore, encourages the prisoner to reform. Once released on parole, provided the conditions are not violated, he will no longer serve the remainder of the sentence. The law hence treats the accused first as an individual and second as a member of society. It shortens his term of imprisonment, depending upon his behavior.

Under the law, what is the purpose for fixing the maximum and the minimum terms of the indeterminate sentence? '02 – Q3b The purpose of the law in fixing the minimum term of the sentence is to set the grace period at which the convict may be released on parole from imprisonment, unless by his conduct he is not deserving of parole and thus he shall continue serving his prison term in jail but in no case to go beyond the maximum term fixed in the sentence.

Juvenile Justice and Welfare Act (R.A. No. 9344) Michael was 17 years old when he was charged for violation of Sec. 5 of R.A. 9165 (illegal sale of prohibited drug). By the time he was convicted and sentenced, he was already 21 years old. The court sentenced him to suffer an indeterminate penalty of imprisonment of six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four(4) months of reclusion temporal, as maximum, and a fine of P500,000.Michael applied for probation but his application was denied because the probation law does not apply to drug offenders under R.A. 9165. Michael then sought the suspension of his sentence under R.A. 9344 or the Juvenile Justice and Youth Welfare Code.

Andres is charged with an offense defined by a special law. The penalty prescribed for the offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon arraignment, he entered a plea of guilty. In the imposition of the proper penalty, should the ISL be applied? If you were the Judge trying the case, what penalty would you impose on Andres? '99 – Q8 YES, the Indeterminate Sentence Law should be applied because the minimum imprisonment is more than one (1) year. If I were the Judge, I will impose an indeterminate sentence, the maximum of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum penalty prescribed by the same. I have the discretion to impose the penalty within the said minimum and maximum.

Can Michael avail of the suspension of his sentence provided under this law? (7%) ’13-Q5 SUGGESTED ANSWER: The benefits of a suspended sentence can no longer apply to Michael. The suspension of sentence lasts only until the offender reaches the maximum age of twenty-one (21) years. Here, Michael has already reached 21 years of age and thus, could no longer be considered a child for purposes of applying Rep. Act No. 9344. However, he shall be entitled to the right of restoration, rehabilitation, and reintegration in accordance with the law to give him the chance to live a normal life and become a productive member of the community. Accordingly, Michael may be confined in an agricultural camp and other training facility in accordance with Section 51 of Rep. Act No. 9344 (People v. Jacinto, G.R. No. 182239, March 16, 2011; People v. Salcedo, G.R. No. 186523, June 22, 2011; Padua v. People, G.R. No. 168546, July 23, 2008 and People v. Sarcia, G.R. No. 169641, September 10, 2009).

A was convicted of illegal possession of grease guns and 2 Thompson sub-machine guns punishable under the old law [RA No. 4] with imprisonment of from five (5) to ten (10) years. The trial court sentenced the accused to suffer imprisonment of five (5) years and one (1) day. Is the penalty thus imposed correct? '99 – Q12b The penalty imposed, being only a straight penalty, is not correct because it does not comply with the Indeterminate Sentence Law which applies to this case. Said law requires that if the offense is punished by any law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum penalty fixed by the law and the minimum shall not be less than the minimum penalty prescribed by the same.

A child in conflict with the law shall enjoy all the rights of a child until: ’11 – Q61 (A) he is found to have acted with discernment. (B) his minority is setoff by some aggravating circumstance. (C) he is proved to be 18 years or older. (D) he forfeits such rights by gross misconduct and immorality.

When would the Indeterminate Sentence Law be inapplicable? '03 – Q13; ’99 – Q12a

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion. 1. What is intervention or diversion? Is Joe entitled to intervention or diversions?

The Indeterminate Sentence Law is not applicable to: 2. Those persons convicted of offenses punished with death penalty or life imprisonment or reclusion perpetua; 3. Those convicted of treason, conspiracy or proposal to commit treason; 4. Those convicted of misprision of treason, rebellion, sedition or espionage; 5. Those convicted of piracy; 6. Those who are habitual delinquents; 7. Those who shall have escaped from confinement or evaded sentence; 8. Those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; 9. Those whose maximum term of imprisonment does not exceed one year; 10. Those already sentenced by final judgment at the time of approval of this Act; and Those whose sentence imposes penalties which do not involve imprisonment, like destierro.

The two terms are different. “Intervention” refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counselling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. This is available to a child 15 years old or less at the time of the commission or although over 15 but below 18 years old at the time of commission of the crime, the child acted without discernment. “Diversion” refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. This process governs when the child is over 15 years old but below 18 at the time of the commission of the crime and he acted with discernment.

The purpose of the Indeterminate Sentence Law is “to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness”. Explain how the law achieves that purpose. ’75 – Q7

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers YES. Joe is entitled to diversion. Being only 17 years old at the time he committed the crime of homicide, he is treated as a child in conflict with the law under R.A. No. 9344. 2.

Ombudsman Law Judge Rod Reyes was appointed by former President Fidel Ramos as Deputy Ombudsman for the Visayas for a term of 7 years commencing on July 5,1995. Six months thereafter, a lady stenographer filed with the Office of the Ombudsman a complaint for acts of lasciviousness and with the Supreme Court a petition for disbarment against him. Forthwith, he filed separate motions to dismiss the complaint for acts of lasciviousness and petition for disbarment, claiming lack of jurisdiction over his person and office. Are both motions meritorious? ’06 – Q12

Suppose Joe’s motion for intervention of diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence?

NO. The judge should not suspend sentence anymore because Joe was already 21 years old. Suspension of sentence is availing under R.A. No. 9344 only until a child reaches the maximum age of twenty-one (21) years. 3.

NO, the motions filed by Judge Reyes are both without merit. Being only a Deputy Ombudsman, he is not included among the government officials who may be removed only by impeachment from office under the Constitution (Office of the Ombudsman v. Court of Appeals, 452 SCRA 715 [2005].) Hence, he may be charged criminally and administratively for the acts of lasciviousness complained of before the Office of the Ombudsman, and for disbarment in a petition with the Supreme Court.

Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under P.D. No. 68, considering that the death penalty is imposable for the consummated felony? ’09 – Q15

YES. He would be eligible for probation because the penalty imposable on Joe will not exceed 6 years of imprisonment. Even if it would be considered that the crime committed was punishable by death, the penalty as far as Joe is concerned can only be reclusion perpetua because R.A. No. 9344 forbids the imposition of the capital punishment upon offenders thereunder. The murder being attempted only, the prescribed penalty is two degrees lower that reclusion perpetua; hence, prision mayor. Because Joe was 17 years old when committed the crime, the penalty of prision mayor should be lowered further by one degree because his minority is a privileged mitigating circumstance; hence, prision correccional or imprisonment within the range of six months and 1 day to 6 years is the imposable penalty.

Probation (P.D. No. 968, as amended) The period of probation of the offender sentenced to a term of one ( 1) year shall not exceed: ’12 - Q33 a) two (2) years; b) six (6) years; c) one (1) year; d) three (3) years; SUGGESTED ANSWER: a) two (2) years; Since the offender was sentenced to term of not more than one year, the period of probation shall not exceed two years (Section 14 of PD No. 698).

A was 2 months below 18 years of age when he committed the crime. He was charged with the crime 3 months later. He was 23 when he was finally convicted and sentenced. Instead of preparing to serve a jail term, he sought a suspension of the sentence on the ground that he was a juvenile offender. 1. Should he be entitled to a suspension of sentence?

Under which of the following circumstances is probation not applicable? ’12 - Q60 a) Probation is not applicable when the accused is sentenced to serve a maximum of six (6) years. b) Probation is not applicable when the accused has been convicted by final judgment of an offense punished by imprisonment of less than one (1) month and/or fine of less than P200.00. c) Probation is not applicable when accused is convicted of indirect assault. d) Probation is not applicable when accused is convicted of indirect bribery. SUGGESTED ANSWER: c) Probation is not applicable when accused is convicted of indirect assault. The benefit of probation shall not be extended to those: (a) sentenced to serve a maximum term of imprisonment of more than six years; (b) convicted of any offense against the security of the State; (c) who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and / or a fine of not less than one month and one day and / or a fine not less than Two Hundred Pesos (Section 9 of PD 968). Thus, probation is applicable (1) when the accused have presently (not previously) been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one day / or fine of not less than P200; and (3) when the accused is convicted of indirect bribery, which is not a crime against national security or public order. However, probation is not applicable when the accused is convicted of direct assault, which is a crime against the public order.

NO, A is not entitled to a suspension of the sentence because he is no longer a minor at the time of promulgation of the sentence. For purposes of suspension of sentence, the offender's age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. So although A was below 18 years old when he committed the crime, but he was already 23 years old when sentenced, he is no longer eligible for suspension of the sentence. [Note: In People v. Arpon, 662 SCRA 506 [2011], it was held that “If the accused committed the crime while he was a minor but was convicted when he was over 21, he can no longer benefit from a suspended sentence, as he is above the maximum age therefor.” Likewise, the Court said in People v. Mantalaba, 654 SCRA 188 [2011], that “While Section 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen years of age at the time of the pronouncement of his guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21.] 2.

Can juvenile offenders, who are recidivists, validly ask for suspension of sentence? '03 – Q8

YES, the child is entitled to an automatic suspension of sentence. Section 38 of R.A. No. 9344 provides that “instead of pronouncing sentence, the court shall place the child in conflict with law under suspended sentence. Provided, however, that suspension shall be supplied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.” If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child, to order execution, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years (Section 40, R.A. No. 9344.)

Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous acts under Section 12, R.A. No. 9165. Matt filed for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petition for probation? ’10 – Q20

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers The brothers’ petition for probation should be denied. Matt’s petition for probation should be denied because he was convicted of drug-trafficking. Section 24 of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) expressly provides, “Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.” On the other hand, Jeff’s application for probation cannot also be entertained or granted because he has already appealed his conviction by the trial court (Section 4, P.D. No. 968, as amended.)

[Note: In Colinares v. People, 662 SCRA 266 [2011], it was held that “The Probation Law, said the Court in Francisco, requires that an accused must have not appealed his conviction before he can avail himself of probation. However, the Court’s finding that Arnel (the accused) was guilty not of frustrated homicide but only of attempted homicide is an original conviction that for the first time imposes upon him a probationable penalty.] A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one (1) day in prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. Prior to his conviction, he had been found guilty of vagrancy and imprisoned for ten (10) days of arresto manor and fined fifty pesos (P50.00). Is he eligible for probation? '02 – Q4a

Maganda was charged with violation of B.P. Blg. 22 punishable by imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000, or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000 with subsidiary imprisonment in case of insolvency, and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she should not change her residence without the court’s prior approval. 1. What is the proper period of probation?

No, he is not entitled to the benefits of the Probation Law (P.D. No. 968, as amended) does not extend to those sentenced to serve a maximum term of imprisonment of more than six years (Section 9(a).) It is of no moment that in his previous conviction A was given a penalty of only ten (10) days of arresto mayor and a fine of P50.00. May a probationer appeal from the decision revoking the grant of probation or modifying the terms and conditions thereof? '02 – Q4b

The period of probation shall not be less than the total number of days of subsidiary imprisonment or more than twice the said number of days as computed at the rate established under the Revised Penal Code, which is one (1) day imprisonment for every P8.00 fine but not to exceed six (6) months (Section 14(b), P.D. No. 968 (Establishing a Probation System) in correlation to Article 39, RPC.) 2.

NO. Under Section 4 of the Probation Law, as amended, an order granting or denying probation is not appealable. A, a subdivision developer, was convicted by the RTC of Makati for failure to issue the subdivision title to a lot buyer despite full payment of the lot, and sentenced to suffer one year Imprisonment. A appealed the decision of the RTC to the Court of Appeals but his appeal was dismissed. May A still apply for probation? '01 – Q17

Supposing before the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? '05 – Q4(1)

NO, A is no longer qualified to apply for probation after he appealed from the judgment of conviction by the RTC. The probation law (P.D. No. 968, as amended by P.D. No. 1990) now provides that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction (Section 4, P.D. No. 968).

YES, the court may revoke the Order of Probation and order the convicted accused to serve the subsidiary imprisonment, because she violated the condition of her probation before the Order of Discharge was issued by the court. The conditions of probation are not co-terminous with the period of probation: such conditions continue even after the period of probation has ended and thus requires faithful compliance or fulfillment, for as long as the court which placed the convict on probation has not issued the Order of Discharge that would release her from probation (Bala v. Martinez, 181 SCRA 459 [1990].)

Juanito was found guilty of Robbery with the RTC of Manila and sentenced to two (2) years as minimum to six (6) years as maximum and Juanito. Juanito did not appeal. When he applied for probation, it was discovered that in March 1960, a municipal court has sentenced him to six-month imprisonment for less serious physical injuries which he fully served. May his application for probation be granted? ’93 – Q2(2)

PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation? '04 – Q3b

He is not entitled to the Probation Law because Section 9(c) provides that probation shall not be extended to those “who have previously been convicted by final judgment of an offense punishable by imprisonment of not less than one (1) month and one (1) day or a fine of not more than P200.00”

YES, PX may apply for probation. His previous conviction for another crime with a penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him from applying for probation; the penalty for his present conviction does not disqualify him either from applying for probation, since the imprisonment does not exceed six (6) years (Section 9, P.D. No. 968).

Trust Receipts Law (P.D. No. 115) Julio obtained a letter of credit from a local bank in order to import auto tires from Japan. To secure payment of his letter of credit, Julio executed a trust receipt in favor of the bank. Upon arrival of the tires, Julio sold them but did not deliver the proceeds to the bank. Julio was charged with estafa under P.D. No. 115 which makes the violation of a trust receipt agreement punishable as estafa under Art. 315, par. (1), subpar. (b), of the Revised Penal Code. Julio contended that P.D. No. 115 was unconstitutional because it violated the Bill of Rights provision against imprisonment for non-payment of debt. Rule on the contention of Julio. ’95 – Q8

Juan was convicted of the RTC of a crime and sentenced to suffer the penalty of imprisonment for a minimum of eight years. He appealed both his conviction and the penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan's conviction but reduced his sentence to a maximum of four years and eight months imprisonment. Could Juan forthwith file an application for probation? '03 – Q14 NO, Juan can no longer avail of the probation because he appealed from the judgment of conviction of the trial court, and therefore, cannot apply for probation anymore. Section 4 of the Probation Law, as amended, mandates that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction.

Such contention is invalid. A trust receipt arrangement doesn't involve merely a simple loan transaction but includes likewise a security feature where the creditor bank extends financial assistance to the

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The Sigma Rho Fraternity Bar Operations 2018 Bar Ques)ons and Answers debtor-importer in return for the collateral or security title as to the goods or merchandise being purchased or imported. The title of the bank to the security is the one sought to be protected and not the loan which is a separate and distinct agreement. What is being penalized under P.D. No. 115 is the misuse or misappropriation of the goods or proceeds realized from the sale of the goods, documents or instruments which are being held in trust for the entrustee-banks. In other words, the law punishes the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of the other, and hence there is no violation of the right against imprisonment for non-payment of debt (People v. Nitafan, 207 SCRA 725 [1992].)

a) acts that promote trafficking in persons; b) trafficking in persons; c qualified trafficking in persons; d) use of trafficked person. SUGGESTED ANSWER: c) qualified trafficking in persons; Adoption or facilitating the adoption of child for the purpose of prostitution constitutes trafficking in person (Section 4 [f] of RA No. 9208). The means to commit trafficking in person can be dispensed with since the trafficked victim is a minor (Section 3). However, trafficking is qualified when trafficked person is a child or when the adoption is effected through Inter-Country Adoption Act of and said adoption is for the purpose of prostitution (Section 6 [a] and [b]).

Anti-Torture Act (R.A. No. 9745) AA was arrested for committing a bailable offense and detained in solitary confinement. He was able to post bail after two (2) weeks of defection. During the period of detention, he was not given any food. Such deprivation caused him physically discomfort. What crime, if any, was committed in connection with the solitary confinement and food deprivation of AA? Explain your answer. (5%) ’12 – Q10b Food deprivation and confinement in solitary cell are considered as physical and psychological torture under Section 4 (2) of RA No. 9745. Hence, the crime committed is torture.

Conspiracy to commit felony is punishable only in cases in which the law specifically provides a penalty therefor. Under which of the following instances are the conspirators not liable? ’12 - Q73

X, a police officer, placed a hood on the head of W, a suspected drug pusher, and watched as Y and Z, police trainees, beat up and tortured W to get his confession. X is liable as: ’11 – Q16 (A) as accomplice in violation of the Anti-Torture Act. (B) a principal in violation of the Anti-Torture Act. (C) a principal in violation of the Anti-Hazing Law. (D) an accomplice in violation of the Anti-Hazing Law.

a)

Conspiracy to commit arson.

b)

Conspiracy to commit terrorism.

c)

Conspiracy to commit child pornography.

d)

Conspiracy to commit trafficking in persons.

SUGGESTED ANSWER: d) Conspiracy to commit trafficking in persons. Conspirators are liable for conspiracy to commit arson (Section 7 of PD No. 1613), conspiracy to commit terrorism (Section 4 of RA No. 9372) and conspiracy to commit child pornography (Section 4 [k] of RA No. 9775) because the law provides penalty thereof. However, conspirators are not liable for conspiracy to commit trafficking in persons because RA No. 9208 has not provided a penalty for it.

Anti-Child Pornography Act (R.A. No. 9775) Mr. P owns a boarding house where he knowingly allowed children to be videotaped while simulating explicit sexual activities. What is Mr. P's criminal liability, if any? ’11 – Q62 (A) Corruption of minors under the Penal Code (B) Violation of the Child Pornography Act (C) Violation of the Child Abuse Law (D) None Obstruction of Justice (P.D. No. 1829) A private person who assists the escape of a person who committed robbery shall be liable: ’11 – Q34 (A) as a principal to the crime of robbery. (B) as an accessory to the crime of robbery. (C) as a principal to the crime of obstruction of justice. (D) as an accessory to the crime of obstruction of justice. Anti-Trafficking in Persons Act of 2003 (R.A. No. 9208) Loko advertised on the internet that he was looking for commercial models for a TV advertisement. Ganda, a 16-year-old beauty, applied for the project. Loko offered her a contract, which Ganda signed. She was asked to report to an address which turned out to be a high-end brothel. Ganda became one of its most featured attraction. What is Loko’s liability, if any? What effect would Ganda’s minority have on Loko’s liability? ‘14-Q10 Loko may be held liable for the crime of trafficking in persons under RA No. 9208 for recruiting, offering and hiring Ganda by means of fraud or deception for the purpose of exploitation or prostitution. Loko recruited Ganda in the guise of making her a commercial model, the deceit that Loko employed in order to recruit Ganda for the purpose of prostitution making him liable for trafficking in persons. Ganda’s minority is a qualifying circumstance. The criminal liability or the penalty for the trafficker is higher when the crime committed is qualified trafficking. When the adoption of a child is effected under the Inter-Country Adoption Act for the purpose of prostitution, what is the proper charge against the offender who is a public officer in relation to the exploitative purpose? ’12 – Q30

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