PRE-WEEK AND

LAST MINUTE LECTURE

IN CRIMINAL LAW
(2019 BAR)
BY:

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

I. REVISED PENAL CODE – BOOK I

GENERAL PRINCIPLES

CRIMINAL LAW is the branch of municipal law which defines crimes, treats of their
nature and provides for their punishment. (12 CYC 129)

MALA IN SE VS. MALA PROHIBITA

CRIMES MALA IN SE embrace acts immoral or wrong in themselves, such as

burglary, larceny, arson, rape, murder, and breaches of peace.1 (RPC)

CRIMES MALA PROHIBITA embrace things prohibited by statute as infringing on

other‘s rights, though no moral turpitude may attach, and constituting crimes only
because they are so prohibited. (SPL’s)

APPLICABILITY AND EFFECTIVITY OF THE RPC

a. GENERALITY. That the law is binding upon all persons who resides or
sojourn in the Philippines, irrespective of age, sex, color, creed, or personal circumstances.

b. TERRITORIALITY. That the law is applicable to all crimes committed within

the limits of Philippine Territory, which includes its atmosphere, interior waters and maritime
zone, (Art. 2)

c. IRRETROSPECTIVITY/PROSPECTIVITY. That the law does not have any

retroactive effect, except if it favors the offender unless he is a habitual delinquent (Art. 22) or
the law otherwise provides.

PRO REO PRINCIPLE

Intimately intertwined with the in dubio pro reo principle is the rule of lenity. It is
the doctrine that ‗a court, in construing an ambiguous criminal statute that sets out
multiple or inconsistent punishments, should resolve the ambiguity in favor of the more
lenient punishment. [Separate Opinion of CJ Corona in People vs. Temporada, G.R. No.
173473, 17 December 2008, citing Black's Law Dictionary, Eighth Edition, p. 1359 (2004).]

PRO REO PRINCIPLE. Where the evidence on an issue of fact is in question or there is
doubt on which side the evidence weighs, the doubt should be resolved in favor of the
accused.2

EQUIPOISE RULE. If inculpatory facts and circumstances are capable of two or more
explanations, one consistent with the innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of moral certainty and will not justify a
conviction.3 [Amanquiton vs. People, G.R. No. 186080, 14 August 2009)(First Division)
[Corona, J.].]

There is no ambiguity in RA 9262 that would necessitate any construction. While

the degree of physical harm under RA 9262 and Article 266 4 of the Revised Penal Code are

1
Black’s Law Dictionary with Pronunciations, Fifth Edition page 334, St. Paul Minn., West Publishing Co., 1979.
2
People vs. Abarquez, 479 SCRA 225 (20 January 2006).
3
People vs. Lagmay, 365 Phil. 606 (1999).
4
ART. 266. Slight physical injuries and maltreatment.- The crime of slight physical injuries shall be punished:

1
 2

the same, there is sufficient justification for prescribing a higher penalty for the former.
Clearly, the legislative intent is to purposely impose a more severe sanction on the offenders
whose violent act/s physically harm women with whom they have or had a sexual or dating
relationship, and/or their children with the end in view of promoting the protection of women
and children. [Dabalos vs. RTC, Branch 59, Angeles City (Pampanga), et al., G.R. No. 193960,
7 January 2013)(Second Division)[Perlas-Bernabe, J.]

IN DUBIO PRO REO. This Latin legal maxim literally means "when in doubt, for the
accused." The earliest historical root of this rule is from the Roman Emperor Trajan (AD 98-
117) when he gave the legal advice that "it is better not to punish the act of a culprit than to
sentence an innocent." People vs. Ong (G.R. No. 175940, 6 February 2008)[Formerly G.R.
Nos. 155361-62](Second Division)[Tinga, J.]

GRAVE VS. LESS GRAVE VS. LIGHT FELONIES

In Mariano vs. People (G.R. No. 178145, 7 July 2014)(First Division)[Bersamin, J.], a
case of Serious Physical Injuries under Art. 263 of the RPC, Article 9 of the Revised Penal
Code (prior to its amendment by R.A. No. 10951), was explained by Mr. Justice Bersamin, viz:

In turn, Article 25 of the Revised Penal Code enumerates:

The principal afflictive penalties to be reclusion perpetua, reclusion temporal, and

prision mayor;

The principal correctional penalties to be prision correccional, arresto mayor,

suspension and destierro;

The light penalties to be arresto menor and fine not exceeding ₱200.00.( Now- x-x-x-x
Light felonies are those infractions of law for the commission of which the penalty of
arresto menor or a fine not exceeding Forty thousand pesos (P40,000) or both is provided.
(As amended by R.A. No. 10951, approved on 29 August 2017.)

Under this provision, death stands alone as the capital punishment.

Art. 263 of the Revised Penal Code classifies the felony of serious physical injuries
based on the gravity of the physical injuries.

ABERRATIO ICTUS, ERROR IN PERSONAE, AND PRAETER INTENTIONEM

ABBERATIO ICTUS (miscarriage of blow thereby hitting a different and/or another

victim), the intended and resultant crimes are punishable under Art. 48 as a complex crime if
both are in the nature of grave or less grave offenses and the penalty shall be for the
graver offense in the maximum period; otherwise, the offenses shall be separately punished
(People vs. Guillen, 85 Phil. 307).

ERROR IN PERSONAE (mistake in the identity of the victim), the crime is

punishable under Art. 49, i.e., the penalty for the lesser crime is imposed in the maximum
period (People vs. Albuquerque, 59 Phil. 150).

PRAETER INTENTIONEM (more serious unintended consequence befell the

victim), the accused shall respond for the crimes committed, whether individually or as
complex crimes, but he may invoke the mitigating circumstance that he did not intend to
commit so grave a wrong (Par. 3, Art. 13).

PROBLEM:

In People vs. Umawid (725 SCRA 597, 9 June 2014)(Second Division)[Perlas-

Bernabe, J.], the accused‘s real target was Vicente. However, it was Maureen, a minor, who
received the fatal blow that resulted her death. Umawid also went to the house of his

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended
party for labor from one to nine days, or shall require medical attendance during the same period;
2. By arresto menor or a fine not exceeding 200 pesos and censure when the offender has caused physical
injuries which do not prevent the offended party from engaging in his habitual work nor require medical
attendance;
3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat
another by deed without causing any injury.
 3

nephew, Jeffrey R. Mercado whom he also hacked but only the fingers were cut and
thereafter Jeffrey pretended to be dead.

1.Q. Umawid was convicted for Murder and frustrated Murder by the RTC,
Roxas, Isabela, Branch 23. It was affirmed by the CA. Was the conviction correct?

1.A. No. In the case of People vs. Umawid supra, the Supreme Court observes that
Maureen’s death is a case of aberratio ictus, given that the fatal blow therefor was only
delivered by mistake as it was actually Vicente who was Umawid’s intended target. In this
regard, Umawid’s single deed actually resulted in the: Compound (Delito Compuesto) – One
Act Resulted To Two Or More Grave Or Less Grave Felonies: (a) Attempted Murder of
Vicente; and (b) Consummated Murder of Maureen.

This may be classified as species of complex crime defined under Article 48 5 of the
RPC, particularly, a delito compuesto, or a compound crime where a single act produces two
(2) or more grave or less grave felonies. 6 Based on the foregoing, Umawid should have been
punished for committing the complex crime of Murder and Attempted Murder, pursuant to
Article 48 in relation to Article 4(1)7 of the RPC.

However, considering that the information in Criminal Case No. 23-0471 only
charged him with the Murder of Maureen, Umawid cannot be convicted of a complex
crime because to do so would be violative of his right to due process.8

2.Q. When can the defense of Insanity be appreciated?

2.A. In Umawid, the High Court held that: Umawid’s plea of insanity as an
exempting circumstance to exonerate himself from criminal liability rests on Article 12 of the
RPC which provides:

Art. 12. Circumstances which exempt from criminal liability.– The following are
exempt from criminal liability:

1. An imbecile or an insane person, unless the latter has acted during a lucid
interval.

Where the imbecile or an insane person has committed an act which the law defines
as a felony (delito), the court shall order his confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not be permitted to leave without
first obtaining the permission of the same court.

The defense of insanity is in the nature of confession and avoidance because an

accused invoking the same admits to have committed the crime but claims that he or she
is not guilty because of such insanity. As there is a presumption in favor of sanity, anyone
who pleads the said defense bears the burden of proving it with clear and convincing
evidence. Accordingly, the evidence on this matter must relate to the time immediately
preceding or simultaneous with the commission of the offense/s with which he is charged.9

Insanity exists when there is a complete deprivation of intelligence while

committing the act, i.e., when the accused is deprived of reason, he acts without the least
discernment because there is a complete absence of power to discern, or there is total
deprivation of freedom of the will.

Mere abnormality of the mental faculties is not enough, especially if the offender
has not lost consciousness of his acts. Insanity is evinced by a deranged and perverted
condition of the mental faculties and is manifested in language and conduct. Thus, in order to

5
Article 48 of the RPC provides:
Article 48. Penalty for complex crimes.– When a single act constitutes two or more grave or less grave
felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.
6
See People vs. Malinao, 467 Phil. 432 (2004).
7
Article 4(1) of the RPC provides:
Article 4. Criminal liability. – Criminal liability shall be incurred:
(1) By any person committing a felony (delito) although the wrongful act done be different from that which
he intended.
8
See People vs. Macagaling, 237 SCRA 299 (3 October 1994).
9
See People vs. Isla, 686 SCRA 267 (21 November 2012).
 4

lend credence to a defense of insanity, it must be shown that the accused had no full and
clear understanding of the nature and consequences of his or her acts.10

In this case, Umawid solely relied on the testimonies of Dr. Quincina and Dr.
Juliana to substantiate his plea of insanity. Records, however, reveal that Dr. Quincina’s
testimony only showed that he evaluated Umawid’s mental condition in May 2002, February
2003, and March 2003.

In other words, he only examined Umawid six (6) months before the latter
committed the crimes and three (3) months and four (4) months thereafter. Notably, he
admitted that his findings did not include Umawid‘s mental disposition immediately
before or at the very moment when he committed such crimes. As such, Dr. Quincina’s
testimony cannot prove Umawid’s insanity. Neither would Dr. Juliana’s testimony shore up
Umawid’s cause as the former failed to attest to the latter’s mental condition and even
referred him to another doctor for further evaluation. Given these circumstances, Umawid’s
defense of insanity remained unsubstantiated and, hence, he was properly adjudged by the
RTC and the CA as criminally liable.

3.Q. How can the qualifying circumstance of treachery be appreciated?

3.A. 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.11 Based on the foregoing, it may then be deduced that two (2)
conditions must concur for treachery to be appreciated:

first, the employment of means of execution that gives the person attacked no
opportunity to defend himself or to retaliate; and,

second, the means of execution was deliberate or consciously adopted. 12

Jurisprudence states that an unexpected and sudden attack which renders the
victim unable and unprepared to put up a defense is the essence of treachery.13

Likewise, it has been held that the killing of a child is characterized by treachery
even if the manner of the assault is not shown because the weakness of the victim due to
her tender age results in the absence of any danger to the accused.14

Thus, in UMAWID, the unexpected killing of Maureen, who was then just two (2) years
old at the time, is treacherous,15 and thus, qualifies Maureen’s killing to Murder.

On the other hand, treachery was appreciated on account of Jeffrey’s minority,

considering that he was just 15 years of age when Umawid attacked him.

Instructive on this point is the case of People vs. Guzman,16 where it was held that
treachery attended the killing of a 17-year old victim due to his minority.

IMPOSSIBLE CRIME (ART. 4)

I. IMPOSSIBLE CRIMES. An impossible crime is one where the acts performed

would have been a crime against persons or property but which is not accomplished because
of its inherent impossibility or because of the employment of inadequate or ineffectual means.
There is intent (subjective) to commit a crime but actually (objective) no crime is
committed.2

Physical impossibility "refers to the distance between the place where the accused
was when the crime transpired and the place where it was committed, as well as the facility
of access between the two places."5

10
See People vs. Domingo, 599 Phil. 589 (2009).
11
See Article 14(16) of the RPC.
12
People vs. Lacaden, 605 SCRA 784 (25 November 2009).
13
See People vs. Agacer, 662 SCRA 461 (14 December 2011).
14
See People vs. Ganohon, 273 Phil. 672 (1991).
15
See People vs. Domingo, supra, citing People vs. Cruz, 429 Phil. 511 (2002).
16
542 Phil. 152 (2007).
 5

Legal impossibility would apply to those circumstances where (1) the motive, desire
and expectation is to perform an act in violation of the law; (2) there is intention to perform the
physical act; (3) there is a performance of the intended physical act; and (4) the consequence
resulting from the intended act does not amount to a crime.6

II. 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 EMPLOYMENT OF INADEQUATE
OR INEFFECTUAL MEANS.

In the case of Jacinto vs. People (G.R. No. 162540, 13 July 2009)(Third Division)
[Peralta, J.], the petitioner-accused was convicted of the crime of Qualified Theft by the trial
court which was affirmed by the Court of Appeals. The Supreme Court modified the conviction
of the accused from Qualified Theft to Impossible Crime as defined and penalized in Articles 4,
paragraph 2, and 59 of the Revised Penal Code, respectively. It was held that:

The personal property subject of the theft must have some value, as the intention
of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where
the law provides that the penalty to be imposed on the accused is dependent on the value of
the thing stolen.

In this case, petitioner unlawfully took the post dated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently dishonored.

Thus, the question arises on whether the crime of qualified theft was actually
produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals17 is highly instructive and applicable to the present case.
In Intod, the accused, intending to kill a person, peppered the latter’s bedroom with bullets,
but since the intended victim was not home at the time, no harm came to him. The trial court
and the CA held Intod guilty of attempted murder. But upon review by this Court, he was
adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article
4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility
of producing the crime.

That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be impossible under
this clause, the act intended by the offender must be by its nature one impossible of
accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of
accomplishing the intended act in order to qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances

unknown to the actor or beyond his control prevent the consummation of the intended crime.

In Intod, the Court went on to give an example of an offense that involved factual
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to
steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility
given in Intod. In this case, petitioner performed all the acts to consummate the crime of
qualified theft, which is a crime against property.

Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check
meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the
fact that the check bounced, she would have received the face value thereof, which was
not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to petitioner at the time, that prevented the crime from

17
215 SCRA 52 (21 October 1992).
 6

being produced. The thing unlawfully taken by petitioner turned out to be absolutely
worthless, because the check was eventually dishonored, and Mega Foam had received the
cash to replace the value of said dishonored check.

STAGES OF EXECUTION

The graduation of penalty by degrees refers to whether the culprit is principal,

accomplice, or accessory.18

The division into periods (maximum, medium and minimum), refers to the proper
penalty which should be imposed when aggravating or mitigating circumstances attend the
commission of the crime.

The general rule is that the penalty prescribed by law in general terms is imposed
upon the principal in a consummated felony.

DISTINCTIONS BETWEEN FRUSTRATED AND ATTEMPTED FELONY

In Serrano vs. People (623 SCRA 322, 5 July 2010)(Third Division)[Brion, J.], citing
Palaganas vs. People (50 SCRA 533, 2006), the Supreme Court made the following
distinctions between frustrated and attempted felony as follows:

1. In frustrated felony, the offender has performed all the acts of execution
which should produce the felony as a consequence;

Whereas in attempted felony, the offender merely commences the commission of a

felony directly by overt acts and does not perform all the acts of execution.

2. In frustrated felony, the reason for the non-accomplishment of the crime is

some cause independent of the will of the perpetrator;

On the other hand, in attempted felony, the reason for the non-fulfillment of the
crime is a cause or accident other than the offender’s own spontaneous desistance.

The crucial point to consider is the nature of the wound inflicted which must be
supported by independent proof showing that the wound inflicted was sufficient to cause the
victim’s death without timely medical intervention.

When nothing in the evidence shows that the wound would be fatal without medical
intervention, the character of the wound enters the realm of doubt; under this situation, the
doubt created by the lack of evidence should be resolved in favor of the petitioner. Thus, the
crime committed should be attempted, not frustrated, homicide.

4.Q. When can there be attempted or frustrated homicide?

4.A. In the case of Colinares vs. People (662 SCRA 266, 13 December 2011)(En
Banc)[Abad, J.], the High Court ruled that: The main element of attempted or frustrated
homicide is the accused‘s intent to take his victim‘s life. The prosecution has to prove this
clearly and convincingly to exclude every possible doubt regarding homicidal intent. 19 And
the intent to kill is often inferred from, among other things, the means the offender used
and the nature, location, and number of wounds he inflicted on his victim.20

In Colinares the accused Arnel Colinares struck Rufino on the head with a huge stone.
The blow was so forceful that it knocked Rufino out. Considering the great size of his weapon,
the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the
Court is convinced that he intended to kill him.

However, the Supreme Court held Arnel guilty only of attempted, not frustrated,
homicide. It further held, citing Palaganas vs. People,21 that when the accused intended to kill
his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but the
victim did not die because of timely medical assistance, the crime is frustrated murder or

18
Article 16, Ibid.
19
People vs. Pagador, 409 Phil. 338 (2001).
20
Rivera vs. People, 515 Phil. 824 (2006).
21
501 SCRA 533 (12 September 2006).
 7

frustrated homicide. If the victim‘s wounds are not fatal, the crime is only attempted
murder or attempted homicide.

5.Q. When can there be an attempted felony?

5.A. In People vs. Jugueta (788 SCRA 331, 5 April 2016)(En Banc)[Peralta, J.], the
High Court held that: The last paragraph of Article 6 of the Revised Penal Code states that a
felony is attempted when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony
by reason of some cause or accident other than his own spontaneous desistance.

In Esqueda vs. People,22 the Court held: If one inflicts physical injuries on another but
the latter survives, the crime committed is either consummated physical injuries, if the
offender had no intention to kill the victim, or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent to kill may be
proved by evidence of:

(a) motive;
(b) the nature or number of weapons used in the commission of the crime;
(c) the nature and number of wounds inflicted on the victim;
(d) the manner the crime was committed; and
(e) the words uttered by the offender at the time the injuries are inflicted by him
on the victim.

In the case of People vs. Jugueta supra, the prosecution has clearly established the
intent to kill on the part of appellant as shown by the use of firearms, the words uttered 23
during, as well as the manner of, the commission of the crime.

APPLICATION/NON-APPLICATION OF ARTICLE 6 OF THE RPC FOR VIOLATION OF

SPECIAL LAWS

In Pecho vs. Sandiganbayan (G.R. No. 111399, 14 November 1994)(En Banc)[Davide,

J.], the Supreme Court explained the application and non-application of Article 6 for violation
of special laws. At issue is Section 3(e) of R.A. No. 3019.

The application of Article 6 of the Revised Penal Code to offenses penalized by

special laws would depend on how the latter defines the offense. This would give life to
Article 10 thereof which provides that the Code shall be supplementary to special laws,
unless the latter should specifically provide the contrary.

In Pecho, there was no actual injury or damage having been caused to the
Government due to the timely 100% examination of the shipment and the subsequent issuance
of a hold order and a warrant of seizure and detention, the petitioner must, perforce, be
acquitted of the violation of Section 3(e) of R.A. No. 3019.

CONTINUING CRIMES

In People vs. De Leon (608 Phil. 701, 2009)[Per Peralta, J.], it was held that:
continued (continuous or continuing) crime is defined as a single crime, consisting of a
series of acts but all arising from one criminal resolution. Although there is a series of acts,
there is only one crime committed; hence, only one penalty shall be imposed.

In Del Socorro vs. Van Wilsem (G.R. No. 193707, 10 December 2014)(Third Division)
[Peralta, J.], citing the case of People vs. De Leon it was held that: The act of denying support
to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense.

COMPLEX CRIMES AND COMPOSITE CRIMES (ART. 48)

6.Q. What is complex crime?

6.A. A complex crime may refer to:

22
607 Phil. 480 (2009).
23
―Magdasal ka na at katapusan mo na ngayon.‖
 8

1. Compound crime when a single act constitutes two or more grave or less
grave felonies;

2. Complex crime proper, or when an offense is a necessary means for

committing the other.

The classic example of the first kind is when a single bullet results in the death of
two or more persons. A different rule governs where separate and distinct acts result in a
number killed. Deeply rooted is the doctrine that when various victims expire from separate
shots, such acts constitute separate and distinct crimes. 24

In a complex crime, two or more crimes are actually committed, however, in the
eyes of the law and in the conscience of the offender they constitute only one crime, thus,
only one penalty is imposed.

7.Q. Can there be complex crime if the violations committed is a felony under
the RPC and a special law?

7.A. No. In Alberto vs. CA (699 SCRA 104, 19 June 2013)(Second Division)[Perlas-
Bernabe, J.], the Supreme Court held that rape cannot be complexed with a violation of
Section 5(b) of RA 7610. Under Article 48 of the Revised Penal Code (on complex crimes), a
felony under the Revised Penal Code (such as rape) cannot be complexed with an offense
penalized by a special law.

In Alberto, the Supreme Court observes that the DOJ charged Gil for Rape in relation
to Child Abuse under Section 5(b), Article III of RA 7610 25 on account of the December 28, 2001
and April 23, 2002 incidents. Existing jurisprudence, however, proscribes charging an
accused for both crimes, rather, he may be charged only for either.

As held in People vs. Pangilinan:26 If the victim is 12 years or older, the offender
should be charged with either sexual abuse under Section 5(b) of RA 7610 or rape under
Article 266-A (except paragraph 1[d]) of the Revised Penal Code.

However, the offender cannot be accused of both crimes for the same act because his
right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act.

8.Q. When can there be special complex crime of Robbery with Homicide?
Explain.

8.A. In People vs. Balute (748 SCRA 172, 21 January 2015)(First Division)[Perlas-
Bernabe, J.], citing the case of People vs. Ibañez,27 the Supreme Court explained that a
special complex crime of robbery with homicide takes place when a homicide is committed
either by reason, or on the occasion, of the robbery.

A conviction requires certitude that the robbery is the main purpose, and the
objective of the malefactor and the killing is merely incidental to the robbery. The intent to
rob must precede the taking of human life but the killing may occur before, during or after
the robbery.28

9.Q. Is estafa through falsification of public, official or commercial document

considered as a complex crime?

24
People vs. Gaffud, Jr., 566 SCRA 76 (19 September 2008); People vs. Orias, 622 SCRA 417 (29 June 2010).
25
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following: x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age,
the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium
period; x x x x
26
660 SCRA 16 (14 November 2011).
27
698 SCRA 161 (10 June 2013).
28
People vs. Algarme, 598 Phil. 423 (2009).
 9

9.A. Yes. In Domingo vs. People,29 the Supreme Court held that the falsification of a
public, official, or commercial document may be a means of committing estafa because, before
the falsified document is actually utilized to defraud another, the crime of falsification has
already been consummated, damage or intent to cause damage not being an element of
the crime of falsification of public, official or commercial document. In other words, the
crime of falsification has already existed. Actually utilizing that falsified public, official or
commercial document to defraud another is estafa. But the damage is caused by the
commission of estafa, not by the falsification of the document. Therefore, the falsification of
the public, official or commercial document is only a necessary means to commit estafa.

10.Q. Can Art. 48 on Complex Crime be applied if there is a proven conspiracy?

10.A. No. The Supreme Court In People vs. Nelmida (G.R. No. 184500, 11
September 2012)(En Banc)[Perez, J.], it was held that: Our repeated ruling is that in
conspiracy, the act of one is the act of all. It is as though each one performed the act of each
one of the conspirators. Each one is criminally responsible for each one of the deaths and
injuries of the several victims. The severalty of the acts prevents the application of Article
48. The applicability of Article 48 depends upon the singularity of the act, thus the
definitional phrase a single act constitutes two or more grave or less grave felonies. This is
not an original reading of the law. In People vs. Hon. Pineda,30 the Court already recognized
the deeply rooted doctrine that when various victims expire from separate shots, such acts
constitute separate and distinct crimes. As we observed in People vs. Tabaco,31 clarifying the
applicability of Article 48 of the Revised Penal Code, this Court further stated in Hon. Pineda
that to apply the first half of Article 48, there must be singularity of criminal act; singularity of
criminal impulse is not written into the law.32

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

JUSTIFYING CIRCUMSTANCES (ART. 11)

11.Q. What are the requisites for the justifying circumstance of self-defense?

11.A. In the following cases:

1. People vs. Inciong (760 SCRA 249, 22 June 2015)(First Division)[Perlas-

Bernabe, J.](Correlate with Art. 11 and 14 of the RPC)[A Murder case where the trial court
convicted the accused affirmed by the CA and by the SC- accused, armed with an unlicensed
firearm (sumpak), with intent to kill, with the qualifying circumstances of treachery, evident
premeditation and cruelty and without any justifiable cause kill the victim did then and there
willfully, unlawfully and feloniously attack, assault, and shoot with the said firearm one Jwnar
Lumbera y Ramos, suddenly and without warning and thereafter hit him twice on his head,
thereby inflicting upon the latter gunshot wound, abdomen and traumatic head injury which
directly caused his death.

The requisite unlawful aggression from the victim, Lumbera, is patently absent in this
case.

It was accused-appellant who was the aggressor, having fired the sumpak at Lumbera
when they crossed paths by the side of the road, and when the latter had fallen to the ground,
hit his head twice with the said weapon.

Treachery as a qualifying circumstance was correctly appreciated. Treachery is

present when the offender commits any of the crimes against persons, employing means,
methods, or forms in the execution, which tend directly and specially to insure its execution,
without risk to the offender arising from the defense which the offended party might make. 33]

2. People vs. Samuya (756 SCRA 365, 20 April 2015)(First Division)[Perlas-

Bernabe, J.]

29
603 SCRA 488 (12 October 2009)[Per Velasco, J.]
30
Campanilla, The Revised Penal Code (Book One) 2007, pp. 916-917; People vs. Mision, supra; People vs. Orias,
supra, citing People vs. Hon. Pineda, supra.
31
336 Phil. 771 (1997).
32
People vs. Hon. Pineda, 127 Phil. 150 (1967).
33
People vs. Lauria, 680 SCRA 560 (13 September 2012).
 10

3. People vs. Matibag (754 SCRA 529, 25 March 2015)(First Division)[Perlas-

Bernabe, J.](Correlate with Art. 11 and 14 of the RPC.)

4. Colinares vs. People (662 SCRA 266, 13 December 2011)(En Banc)[Abad, J.],
the Supreme Court held that: To successfully invoke the justifying circumstance of self-defense
the following requisites must be present:

(1) unlawful aggression;

(2) reasonable necessity of the means employed to prevent or repel it;
(3) lack of sufficient provocation on the part of the person defending himself. 34

An accused who invokes self-defense has the burden to prove all the aforesaid
elements, the most important of which is unlawful aggression. Being the basic requirement
in a plea of self-defense,35 unlawful aggression must be proved first in order for self-defense
to be successfully pleaded, whether complete or incomplete.36

No self-defense can exist without unlawful aggression since there is no attack that
the accused will have to prevent or repel.37

If the victim did not commit unlawful aggression against the accused, the latter
has nothing to prevent or repel and the other two requisites of self-defense would have no
basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and
unexpected attack or an imminent danger of such attack.

A mere threatening or intimidating attitude is not enough. The victim must attack
the accused with actual physical force or with a weapon. 38

12.Q. What are the elements of the justifying circumstance of Defense of

Relative?

12.A. There are three elements, to wit:

(1) there was unlawful aggression on the part of the victim;

(2) there was reasonable necessity of the means employed to prevent or repel it;
and

(3) in case of provocation given by the person being attacked, the person making
defense had no part therein.39

Like in the case of self-defense, unlawful aggression is also an indispensable element

in defense of relative. (People vs. Agacer, 662 SCRA 461, 14 December 2011.)

Upon invoking the justifying circumstance of self-defense, the accused assumed the
burden of proving the justification of his act with clear and convincing evidence. This is
because his having admitted the killing required him to rely on the strength of his own
evidence, not on the weakness of the prosecution’s evidence, which, even if it were weak,
could not be disbelieved in view of his admission.40

As case law puts it, there can be no self-defense unless the victim committed
unlawful aggression against the person who resorted to self-defense.41

13.Q. Who has the burden of proof if the accused invoked self-defense?

13.A. When the accused invokes self-defense, he bears the burden of showing
that he was legally justified in killing the victim or inflicting injury to him. The accused
must establish the elements of self-defense by clear and convincing evidence. When

34
Dean vs. State, 57 So.3d 169 (2010)
35
People vs. Gonzales, 672 SCRA 590 (13 June 2012).
36
People vs. Malicdem, 685 SCRA 193 (12 November 2012).
37
See Guevarra vs. People, 715 SCRA 384 (5 February 2014).
38
170 Wash. 2d 103, 239 P.3d 1102 (2010); People vs. Ramos, 702 SCRA 204 (24 July 2013); People vs. Concillado, 661
SCRA 363 (28 November 2011).
39
People vs. Aleta, 585 SCRA 578 (16 April 2009).
40
People vs. Mediado, 641 SCRA 366 (2 February 2011).
41
Razon vs. People, 552 Phil. 359 (2007).
 11

successful, the otherwise felonious deed would be excused, mainly predicated on the lack
of criminal intent of the accused.42

14.Q. Is retaliation the same with self-defense? Explain.

14.A. No. Retaliation is not the same as self-defense. In retaliation, the aggression
that was begun by the injured party already ceased when the accused attacked him, while
in self-defense the aggression was still existing when the aggressor was injured by the
accused.43

EXEMPTING CIRCUMSTANCES (ART. 12)

15.Q. How can the defense of insanity be appreciated as an exempting

circumstance in the commission of the crime?

15.A. In the case of People vs. Umawid (725 SCRA 597, 9 June 2014)(Second
Division)[Perlas-Bernabe, J.], the defense of insanity was rejected by the Supreme court as it
was not supported by evidence on record. The High Court held that: The defense of insanity
is in the nature of confession and avoidance because an accused invoking the same admits
to have committed the crime but claims that he or she is not guilty because of such
insanity. As there is a presumption in favor of sanity, anyone who pleads the said defense
bears the burden of proving it with clear and convincing evidence. Accordingly, the evidence
on this matter must relate to the time immediately preceding or simultaneous with the
commission of the offense/s with which he is charged.44

WHEN INSANITY EXISTS

Insanity exists when there is a complete deprivation of intelligence while

committing the act, i.e., when the accused is deprived of reason, he acts without the least
discernment because there is a complete absence of power to discern, or there is total
deprivation of freedom of the will.

Mere abnormality of the mental faculties is not enough, especially if the offender
has not lost consciousness of his acts. Insanity is evinced by a deranged and perverted
condition of the mental faculties and is manifested in language and conduct. Thus, in order
to lend credence to a defense of insanity, it must be shown that the accused had no full
and clear understanding of the nature and consequences of his or her acts.45

16.Q. What are the requisites in order to avail the exempting circumstance that
the accused acted under the impulse of an uncontrollable fear of an equal or greater
injury?

16.A. In People vs. Baron,46 the Supreme Court held that the appellant’s attempt to
evade criminal liability by insisting that he acted under the impulse of an uncontrollable
fear of an equal or greater injury fails to impress.

To avail of this exempting circumstance, the evidence must establish:

(1) the existence of an uncontrollable fear;

(2) that the fear must be real and imminent; and
(3) the fear of an injury is greater than or at least equal to that committed.47

A threat of future injury is insufficient. The compulsion must be of such a character as

to leave no opportunity for the accused to escape. 48

MITIGATING CIRCUMSTANCES (ART. 13)

17.Q. How can voluntary surrender be considered as a mitigating circumstance in

the commission of a crime?

42
People vs. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
43
Razon vs. People, supra.
44
See People vs. Isla, 686 SCRA 267 (21 November 2012).
45
See People vs. Domingo, 599 Phil. 589 (2009).
46
621 SCRA 646 (28 June 2010)(First Division)[Del Castillo, J.].
47
Article 12(6), Revised Penal Code; People vs. Petenia, 227 Phil. 337 (1986).
48
People vs. Palencia, 162 Phil. 695 (1976).
 12

17.A. A surrender to be voluntary must be spontaneous, showing the intent of the

accused to submit himself unconditionally to the authorities either because:

(a) he acknowledges his guilt; or

(b) he wishes to save them the trouble and expense necessarily incurred in his
search and capture.49 (People vs. Agacer, 662 SCRA 461, 14 December 2011.)

18.Q. What is the essence of voluntary surrender?

18.A. To save the authorities the trouble and expense that may be incurred for his
search and capture50 is the essence of voluntary surrender. The presentation by appellant of
himself to the police officer on duty in a spontaneous manner is a manifestation of this
intent. (People vs. Sales, 658 SCRA 367, 3 October 2011.)

AGGRAVATING CIRCUMSTANCES (ART. 14)

19.Q. What are the requisites in order that the defense of alibi will prosper?

19.A. In the following cases:

1. People vs. Parba (773 SCRA 83, 19 October 2015)(First Division)[Perlas-

Bernabe, J.](Correlate with Art. 11 and 248 of the RPC)

2. People vs. Wahiman (758 SCRA 366, 16 June 2015)(En Banc)[Del Castillo, J.],
it was held that: The accused invoked the defense of alibi and used physical impossibility.
However, the Supreme Court rejected his assertions. Citing the case of People vs.
Marquez,51 the Court explained that physical impossibility refers to the distance between the
place where the accused was when the crime transpired and the place where it was
committed, as well as the facility of access between the two places. 52

Thus, a distance of one and a half (1½) to two (2) kilometers 53 was held not too far
to traverse by walking. Likewise, a distance of about two (2) kilometers, 54 three (3)
kilometers,55 or even five (5) kilometers56 were consistently held not too far to preclude the
possibility that the accused was present at the locus criminis.57 Surely then, a distance of
100 meters, as in this case, is not the physical impossibility contemplated to satisfy the
defense of alibi.

Physical impossibility refers to the distance and the facility of access between the
crime scene and the location of the accused when the crime was committed. He must
demonstrate that he was so far away and could not have been physically present at the
crime scene and its immediate vicinity when the crime was committed. [People vs. Amora
(742 SCRA 667, 26 November 2014); People vs. Nelmida (680 SCRA 386, 11 September
2012)(En Banc)[Perez, J.].]

USE OF UNLICENSED FIREARM, SPECIAL AGGRAVATING CIRCUMSTANCE

20.Q. How should the use of unlicensed firearm be appreciated in the crimes of
Murder or Homicide?

20.A. In the case of People vs. Matibag (754 SCRA 529, 25 March 2015)(First
Division)[Perlas-Bernabe, J.],58 the High Court held that: The use of unlicensed firearm if
alleged in the information, is considered as special aggravating circumstance. It should be
appreciated in the imposition of penalty. Presidential Decree No. 1866,59 as amended by

49
People vs. Rabanillo, 367 Phil. 114 (1999).
50
People vs. Garcia, 554 SCRA 616 (17 June 2008).
51
400 Phil. 1313 (2000).
52
See also People vs. Ramos, 702 SCRA 204 (24 July 2013).
53
People vs. Mosquerra, 414 Phil. 740 (2001).
54
People vs. Cañete, 350 Phil. 933 (1998).
55
See People vs. Binsol, 100 Phil. 713 (1957).
56
People vs. Manabat, 100 Phil. 603 (1956).
57
See People vs. Aparato, 80 Phil. 199 (1948).
58
Correlate with Art. 11 and 14 of the RPC.
59
Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of
Firearms, Ammunition or Explosives; and Imposing Stiffer Penalties for Certain Violations Thereof and for Relevant
Purposes (29 June 1983).
 13

Republic Act No. 8294,60 treats the unauthorized use of a licensed firearm in the
commission of the crimes of homicide or murder as a special aggravating circumstance.

21.Q. Can the aggravating circumstance of dwelling be considered against the

accused when he did the firing of the gun from the outside of the house?

21.A. Yes. In People vs. Jugueta (788 SCRA 331, 5 April 2016)(En Banc)[Peralta,
J.], it was held that: Dwelling is aggravating because of the sanctity of privacy which the
law accords to human abode. He who goes to another's house to hurt him or do him wrong
is more guilty than he who offends him elsewhere. 61

In People vs. Sibbu (G.R. No. 214757, 29 March 2017), although the triggerman fired
the shot from outside the house and his victim was inside, dwelling was still appreciated as
an aggravating circumstance. The Supreme Court said: For this circumstance to be
considered, it is not necessary that the accused should have actually entered the dwelling of
the victim to commit the offense; it is enough that the victim was attacked inside his own
house, although the assailant may have devised means to perpetrate the assault from without.

TREACHERY

22.Q. When can there be treachery in the commission of a crime? (Art. 14 [16])

22.A. In People vs. Agcanas (658 SCRA 842, 11 October 2011)(En Banc)[Sereno,
J.],62 citing People vs. Dela Cruz,63 it was held that: There is treachery when the offender
commits any of the crimes against persons, employing means, methods, or forms in the
execution, which tend directly and specially to insure its execution, without risk to the
offender arising from the defense which the offended party might make.

23.Q. Can the aggravating circumstance of the use of firearm be appreciated even
if it is not recovered?

23.A. Yes. In People vs. Agcanas supra, it was held that the aggravating
circumstance of illegal possession of firearm was likewise properly appreciated, even though
the firearm used was not recovered. The high court further said that in People vs. Taguba,64
the actual firearm itself need not be presented if its existence can be proved by the
testimonies of witnesses or by other evidence presented. Thus, in Agcanas, Beatriz Raguirag
testified that she saw the accused holding a gun and then heard a gunshot. The post-mortem
examination also showed that the accused died of a gunshot wound. Hence, the
presentation of the actual firearm was not indispensible to prove its existence and use.

24.Q. What is the essence of treachery?

24.A. In People vs. Nelmida (680 SCRA 386, 11 September 2012)(En Banc)[Perez,
J.], the High Court ruled that: The essence of treachery is the sudden and unexpected attack
by the aggressor on an unsuspecting victim, depriving him of any real chance to defend
himself. Even when the victim was forewarned of the danger to his person, treachery may still
be appreciated since what is decisive is that the execution of the attack made it impossible for
the victim to defend himself or to retaliate. 65 (People vs. Alvarez, 748 SCRA 674, 2 February
2015; People vs. Amora, 742 SCRA 667, 26 November 2014; People vs. Zulieta, 709 SCRA
202, 11 September 2013; People vs. Agacer, 662 SCRA 461, 14 December 2011; People vs.
Lucero, 636 SCRA 535, 6 December 2010; Bug-atan vs. People, 630 SCRA 537, 15 September
2010.)

25.Q. Can treachery be appreciated in case of robbery with homicide to increase

the imposable penalty? Explain.

60
An Act Amending the Provisions of Presidential Decree No. 1866, As Amended, entitled: Codifying the Laws on
Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or
Explosives; and Imposing Stiffer Penalties for Certain Violations Thereof and for Relevant Purposes (6 June 1997).
61
People vs. Agcanas, 674 Phil. 626 (2011).
62
The conviction of the accused for murder was affirmed by the Supreme Court with the presence of the aggravating
circumstances of treachery, dwelling and use of unlicensed firearm.
63
People vs. Dela Cruz, 612 SCRA 738 (16 February 2010).
64
396 Phil. 366.
65
People vs. Angeles, 596 SCRA 304 (14 August 2009).
 14

25.A. Yes. In People vs. Baron,66 the Supreme Court said that: Robbery with
Homicide is a single indivisible crime punishable with reclusion perpetua to death under
paragraph 1, Article 294 of the Revised Penal Code. The trial court correctly appreciated the
aggravating circumstance of treachery, which exists when the offender commits any of the
crimes against persons, employing means, methods or forms in the execution thereof that tend
directly and specifically to insure its execution without risk to himself arising from the defense
that the offended party might make.67 The evidence points that one of the co-conspirators
tied the hands of the victim before dragging him to the sugarcane field. Thus, he was
unable to defend and protect himself against his malefactors who were superior in number
and armed with knives and guns.

As thoroughly discussed in People vs. Escote, Jr.,68 treachery is not a qualifying

circumstance but "a generic aggravating circumstance to robbery with homicide although
said crime is classified as a crime against property and a single and indivisible crime".
Corollarily, "Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or
increasing the penalty for a crime, aggravating circumstances shall be taken into account.
However, aggravating circumstances which in themselves constitute a crime especially
punishable by law or which are included by the law in defining a crime and prescribing a
penalty therefor shall not be taken into account for the purpose of increasing the penalty". In
the case at bar, "treachery is not an element of robbery with homicide". Neither is it "inherent
in the crime of robbery with homicide".

26.Q. When can there be abuse of superior strength in the commission of a

crime? (Art. 14 [15])

26.A. In People vs. Nelmida (680 SCRA 386, 11 September 2012)(En Banc)[Perez,
J.], it was held that: There is abuse of superior strength when the offenders took advantage
of their combined strength in order to consummate the offense. 69 (People vs. Torres, 735
SCRA 687, 22 September 2014.)

ALTERNATIVE CIRCUMSTANCES (ARTICLE 15)

Alternative circumstances are those which must be taken into consideration as

aggravating or mitigating according to the nature and effects of the crime and the other
conditions attending its commission.

They are the relationship, intoxication, and the degree of instruction and education of
the offender. (People vs. Belaro, G.R. No. 99869, 26 May 1999)(First Division)[Kapunan, J.]

ABSOLUTORY CAUSES

An absolutory cause recognizes the commission of a crime but for reasons of public
policy and sentiment, there is no penalty imposed.70 (People vs. Macal, G.R. No. 211062, 13
January 2016)(First Division)[Perez, J.]

An absolutory cause is a circumstance which is present prior to or simultaneously

with the offense by reason of which the accused who acts with criminal intent, freedom and
intelligence does not incur criminal liability for an act that constitutes a crime [(Regalado,
Florenz, Criminal Law Conspectus, Third Edition, 61-62 (2007); cited in the case of Intestate
Estate of Manolita Gonzales Vda. De Carungcong vs. People, G.R. No. 181409, 11 February
2010)(Third Division)[Corona, J.].]

66
621 SCRA 646 (28 June 2010).
67
Article 14(16), Revised Penal Code.
68
400 SCRA 603 (2003).
69
People vs. Lacbayan, 393 Phil. 800 (2006).
70
Article 247 of the Revised Penal Code provides:
Art. 247. Death or physical injuries inflicted under exceptional circumstances. - Any legally married person
who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of
them or both of them In the act or immediately thereafter, or shall inflict upon them any serious physical injury,
shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents with respect to their daughters
under eighteen years of age, and their seducers, while the daughters are living with their parents.
Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have
consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.
 15

PERSONS LIABLE AND DEGREE OF PARTICIPATION (WHO ARE CRIMINALLY LIABLE,

ART. 16)

PARTICIPANTS IN THE COMMISSION OF A CRIME

Several persons may take part in the commission of a felony without the participation
of each being equal. It would not be just, to impose an equal responsibility upon all such
participants, Hence, the Revised Penal Code makes a treble division of persons criminally
responsible for its commission into:

1. Principals;
2. Accomplices; and
3. Accessories.

DEGREE OF PENALTY

The degree of participation of each of several persons in the commission of a crime

whether principals, accomplices, or accessories and the stages of execution whether
attempted, frustrated, or consummated, determine the degrees of the penalty which should
be imposed upon the offenders.

CRIMINAL LIABILITY IN GRAVE AND LESS GRAVE FELONIES

In grave and less grave felonies, all participants in the commission of the crime,
whether principals, accomplices, or accessories, are liable regardless of whether the felony is
consummated, frustrated, or attempted.

ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL LIABILTY

These are those provided by Article 20 and 19 paragraph 1 of the Revised Penal Code
which relevantly provides that:

a) ARTICLE 20. Accessories who are exempt from criminal liability.— The
penalties prescribed for accessories shall not be imposed upon those who are such with
respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers
and sisters, or relatives by affinity within the same degrees, with the single exception of
accessories falling within the provisions of paragraph 1 of the next preceding article.

b) ARTICLE 19. Accessories.— Accessories are those who, having knowledge

of the commission of the crime, and without having participated therein, either as principals or
accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the

crime.

x-x-x-x-x

CRIMINAL LIABILITY IN LIGHT FELONIES

In light felonies, the following principals should be considered:

First, light felonies are punishable only when they have been consummated, 71 except
when light felonies are against person or property in which case they are punishable even if
only frustrated or attempted;

Second, only principals and accomplices are liable for light felonies. 72

Accessories are not criminally liable for light felonies, even if consummated and even if
the crime is against persons or property.

71
Art. 7, Revised Penal Code
72
Art. 16 of the Revised Penal Code
 16

PRINCIPALS, ACCOMPLICES, AND ACCESSORIES

PRINCIPALS (ARTICLE 17)

They take direct part in the execution of a criminal act who, participating in the
criminal design, proceed to carry out their plan and personally take part in its execution by
acts which directly tend to the same end. 73

ACCOMPLICES (ART. 18)

27.Q. When can a person be considered as accomplice?

27.A. In People vs. Gambao, et al. (706 SCRA 508, 1 October 2013)(En Banc)[Perez,
J.],74 the High Court held that: Being present and giving moral support when a crime is
being committed will make a person responsible as an accomplice in the crime
committed.75 It should be noted that the accused-appellant’s presence and company were not
indispensable and essential to the perpetration of the kidnapping for ransom; hence, she is
only liable as an accomplice.76 Moreover, this Court is guided by the ruling in People vs.
Clemente, et al.,77 where it was stressed that in case of doubt, the participation of the
offender will be considered as that of an accomplice rather than that of a principal.

ACCESSORIES (ARTICLE 19)

Accessory can be convicted even if the principal is acquitted (Vino vs. People, G.R.
No. 84163, 19 October 1989)(First Division)[Gancayco, J.](Resolution of the Motion for
Reconsideration)

CONSPIRACY AND PROPOSAL TO COMMIT A FELONY (ART. 8)

28.Q. When can there be conspiracy in the commission of a crime?

28.A. In the following cases:

1. People vs. Dionaldo (731 SCRA 68, 23 July 2014)[Perlas-Bernabe, J.](The SC

Affirmed the RTC and the CA. Accused-appellants were GUILTY of the special complex crime
of Kidnapping for Ransom with Homicide, and are sentenced to each suffer the penalty of
reclusion perpetua, without eligibility for parole, and to pay, jointly and severally, the family of
the kidnap victim.

It was clearly established that accused-appellants, who were all private individuals,
took the victim Edwin and deprived him of his liberty, which acts were illegal, and for the
purpose of extorting ransom.)

2. People vs. Lamsen (691 SCRA 498, 20 February 2013)(Second Division)

[Perlas-Bernabe, J.](Conspiracy)It can be presumed from and proven by acts of the accused
themselves when the said acts point to a joint purpose, design, concerted action, and
community of interests.78 )

3. People vs. Gambao, et al. (706 SCRA 508, 1 October 2013)(En Banc)[Perez,
J.](Accused were found guilty beyond reasonable doubt as principals for the crime of
kidnapping for ransom and sentenced to suffer the penalty of reclusion perpetua, without
eligibility of parole.)

4. People vs. Nelmida (680 SCRA 386, 11 September 2012)(En Banc)[Perez, J.]
(Accused were convicted of two (2) counts of murder, seven (7) counts of attempted murder),
the High Court held that: Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it, and when conspiracy is

73
Viada, Codigo Penal, 5th ed., vol. 1, p. 341; Albert's Revised Penal Code Ann., 144.
74
The principals in the crime of kidnapping for ransom were sentenced to suffer the penalty of Reclusion Perpetua,
without eligibility of parole. Appellant Larina Perpenian was convicted as accomplice.
75
People vs. Toling, 180 Phil. 305 (1979).
76
People vs. Ubiña, 97 Phil. 515 (1955).
77
128 Phil. 268 (1967).
78
People vs. Buntag, 427 SCRA 180 (14 April 2004); People vs. De Chavez, 619 SCRA 464 (23 April 2010).
 17

established, the responsibility of the conspirators is collective, not individual, rendering all of
them equally liable regardless of the extent of their respective participations. 79

Direct proof is not essential to establish conspiracy, as it can be presumed from and
proven by the acts of the accused pointing to a joint purpose, design, concerted action, and
community of interests.80

In the crime the accused appellants have committed does not, as the records
obviously bear, merely constitute Kidnapping and Serious Illegal Detention, but that of the
special complex crime of Kidnapping for Ransom with Homicide. This is in view of the
victim’s (i.e., Edwin’s) death, which was (a) specifically charged in the Information, 81 and (b)
clearly established during the trial of this case.

Notably, while this matter was not among the issues raised before the Court, the
same should nonetheless be considered in accordance with the settled rule that in a
criminal case, an appeal, as in this case, throws open the entire case wide open for review,
and the appellate court can correct errors, though unassigned, that may be found in the
appealed judgment.82

CONSPIRACY MAY BE INFERED THROUGH THE TESTIMONIAL EVIDENCE

In People vs. Gambao, et al.,83 a case for kidnapping for ransom, the Supreme Court
upheld the conviction of all the accused. It held that: The testimonies, when taken together,
reveal the common purpose of the accused-appellants and how they were all united in its
execution from beginning to end. There were testimonies proving that (1) before the
incident, two of the accused-appellants kept coming back to the victim‘s house; (2) during
the kidnapping, accused-appellants changed shifts in guarding the victim; and (3) the
accused appellants were those present when the ransom money was recovered and when
the rescue operation was conducted.

CONSPIRACY IN THE CRIME OF PLUNDER

29.Q. Is there conspiracy in the commission of the crime of plunder under R.A.
No. 7080?

29.A. Yes. In Napoles vs. Sandiganbayan (Third Division)(844 SCRA 244, 7

November 2017)(En Banc)[Reyes, Jr., J.], the Supreme Court held that: The charge of
Plunder against Napoles in this case alleges a conspiracy among former Senator Enrile and
Reyes, as public officers, and Napoles, Lim, and De Asis, as private individuals. On this
point, this Court has consistently ruled that the conspiracy among the accused to commit
the crime of Plunder is usually an agreement or connivance to secretly cooperate in doing
the unlawful act.84

Even Congress, in its Explanatory Note to the proposed bill criminalizing Plunder,
recognized that this crime, by its very nature, is committed through a series or
combination of acts done in stealth and secrecy over a period of time.85

30.Q. Is it necessary that direct proof be presented in the Sandiganbayan to

establish conspiracy in the commission of the Crime of Plunder? Explain.

30.A. No. Seeing as it would be difficult to provide direct evidence establishing the
conspiracy among the accused, the Sandiganbayan may infer it from proof of facts and
circumstances which, taken together, apparently indicate that they are merely parts of some
complete whole. It was therefore unnecessary for the Sandiganbayan to find direct proof of

79
People vs. Castro, 434 Phil. 206 (2002).
80
People vs. Buntag, 471 Phil. 82 (2004).
81
"The above-named accused, conspiring together and mutually helping one another, being then private persons, did
then and there by force and intimidation willfully, unlawfully and feloniously with the use of motor vehicle and
superior strength take, carry and deprive EDWIN NAVARRO Y ONA, of his liberty against his will, for the purpose
of extorting ransom as in fact a demand of ₱15,000,000.00 was made as a condition of the victim’s release and on
the occasion thereof, the death of the victim resulted."
82
People vs. Quimzon, 427 SCRA 261 (14 April 2004), citing People vs. Feliciano, 418 Phil. 88 (2001).
83
G.R. No. 172707 (1 October 2013)(En Banc)[Perez, J.].
84
See Enrile vs. People, 766 Phil. 75 (2015), citing Separate Opinion of Associate Justice Jose C. Vitug (Ret.) in Atty.
Edward Serapio vs. Sandiganbayan, et al., 444 Phil. 499 (2003).
85
Explanatory Note to Senate Bill No. 733, which was later on passed as R.A. No. 7080 as cited in Jose "Jinggoy"
Estrada vs. Sandiganbayan, 427 Phil. 820 (2002).
 18

any agreement among Napoles, former Senator Enrile and Reyes. The conspiracy may be
implied from the intentional participation in the transaction that furthers the common design
and purpose. As long as the prosecution was able to prove that two or more persons aimed
their acts towards the accomplishment of the same unlawful object, each doing a part so that
their combined acts, though apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment, the conspiracy
may be inferred even if no actual meeting among them was proven.86

Here, the implied conspiracy among Napoles and her co-accused was proven through
various documentary and testimonial evidence showing that they acted towards the
common goal of misappropriating the PDAF of former Senator Enrile.

Napoles had access to the bank accounts of the NGOs because as Sula, Luy, and
Suñas testified during the bail hearing, they were required to sign blank withdrawal slips,
which were turned over to Napoles together with the corresponding passbook for these
accounts. Thus, in the ultimate scheme of things, Napoles received the amounts allocated for
the PDAF-funded projects of former Senator Enrile, which she later on apportioned according
to the agreed upon share of the legislators.

With respect to the actual delivery of the PDAF-funded projects to its intended
beneficiaries, Sula, Luy, Suñas, and Baltazar admitted that they fabricated the liquidation
documents. This was done by forging the receipts and the signatures of the beneficiaries,
making it appear that the project was indeed implemented. Again, this supported the findings
of the COA Special Audit Team and the FIO on the fictitious projects funded by the PDAF of
former Senator Enrile.

It is plain from the foregoing that Napoles and her co-accused, as well as the former
employees of Napoles who were eventually admitted as State witnesses, had a common
design and objective—to divert the PDAF of former Senator Enrile from its lawful purpose and
to their own personal accounts. The individuals involved in this case performed different
criminal acts, which contributed, directly or indirectly, in the amassing, accumulation, and
acquisition of ill-gotten wealth. Consistent with the doctrine on implied conspiracy, these
actions on the part of Napoles and her co-accused are sufficient to prove the existence of a
concurrence sentiment, regardless of any proof that an actual agreement took place.

31.Q. Is a conspiracy a crime?

31.A. No. In Macapagal-Arroyo vs. People (797 SCRA 241, 19 July 2016)(En Banc)
[Bersamin, J.], as a rule, conspiracy is not a crime unless the law considers it a crime, and
prescribes a penalty for it.87

32.Q. Is there exception?

32.A. Yes. The exception is exemplified in Article 115 (conspiracy and proposal to
commit treason), Article 136 (conspiracy and proposal to commit coup d'etat, rebellion or
insurrection) and Article 141 (conspiracy to commit sedition) of the Revised Penal Code.

When conspiracy is a means to commit a crime, it is indispensable that the

agreement to commit the crime among all the conspirators, or their community of criminal
design must be alleged and competently shown.

The Supreme Court also stress that the community of design to commit an offense
must be a conscious one.88 Conspiracy transcends mere companionship, and mere presence
at the scene of the crime does not in itself amount to conspiracy. Even knowledge of, or
acquiescence in, or agreement to cooperate is not enough to constitute one a party to a
conspiracy, absent any active participation in the commission of the crime with a view to the
furtherance of the common design and purpose. Hence, conspiracy must be established, not by
conjecture, but by positive and conclusive evidence.

33.Q. What is implied conspiracy?

86
People vs. Del Rosario, 365 Phil. 292 (1999), citing People vs. Orodio, 247-A Phil. 409 (1988).
87
Estrada vs. Sandiganbayan, 377 SCRA 538 (26 February 2002).
88
Bahilidad vs. People, 615 SCRA 597 (17 March 2010).
 19

33.A. An implied conspiracy exists when two or more persons are shown to have
aimed by their acts towards the accomplishment of the same unlawful object, each doing a
part so that their combined acts, though apparently independent, were in fact connected
and cooperative, indicating closeness of personal association and a concurrence of
sentiment.89

Implied conspiracy is proved through the mode and manner of the commission of
the offense, or from the acts of the accused before, during and after the commission of the
crime indubitably pointing to a joint purpose, a concert of action and a community of
interest.90

34.Q. How can the accused be considered to be part of the conspiracy? Explain.

34.A. To be considered a part of the conspiracy, each of the accused must be

shown to have performed at least an overt act in pursuance or in furtherance of the
conspiracy, for without being shown to do so none of them will be liable as a co-conspirator,
and each may only be held responsible for the results of his own acts.

35.Q. President JND of the Banana Republic, dubbed as the sick man country in
Asia, received a request for additional CIF from the General Manager of PCSO. It amounted
to more than P50,000,000.00. He affixed the word ―OK‖ on the said request. Later, it was
found out that the money was misused. Can President JND be held criminally liable for
plunder either as the mastermind or as a co-conspirator? Explain.

35.A. No. In the case of Macapagal-Arroyo vs. People supra, the Supreme Court
said:

It is in this regard that the Sandiganbayan gravely abused its discretion amounting to
lack or excess of its jurisdiction. To start with, its conclusion that GMA had been the
mastermind of plunder was plainly conjectural and outrightly unfounded considering that
the information did not aver at all that she had been the mastermind; hence, the
Sandiganbayan thereby acted capriciously and arbitrarily.

In the second place, the treatment by the Sandiganbayan of her handwritten

unqualified "OK" as an overt act of plunder was absolutely unwarranted considering that
such act was a common legal and valid practice of signifying approval of a fund release by
the President. Indeed, pursuant to People vs. Lizada supra, an act or conduct becomes an
overt act of a crime only when it evinces a causal relation to the intended crime because the
act or conduct will not be an overt act of the crime if it does not have an immediate and
necessary relation to the offense.

36.Q. What is Wheel Conspiracy and Chain Conspiracy as a means to commit a

crime? Explain.

36.A. In Estrada vs. Sandiganbayan,91 the Supreme Court recognized two nuances
of appreciating conspiracy as a means to commit a crime, the wheel conspiracy and the chain
conspiracy.

WHEEL CONSPIRACY

The wheel conspiracy occurs when there is a single person or group (the hub)
dealing individually with two or more other persons or groups (the spokes). The spoke
typically interacts with the hub rather than with another spoke. In the event that the spoke
shares a common purpose to succeed, there is a single conspiracy. However, in the instances
when each spoke is unconcerned with the success of the other spokes, there are multiple
conspiracies.92

An illustration of wheel conspiracy wherein there is only one conspiracy involved

was the conspiracy alleged in the information for plunder filed against former President
Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were

89
People vs. De Leon, 591 SCRA 178 (26 June 2009).
90
People vs. Del Castillo, 663 SCRA 226 (18 January 2012).
91
377 SCRA 538 (26 February 2002).
92
Contemporary Criminal Law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R., Sage Publication,
California, USA, 2013, p. 195.
 20

all the other accused individuals. The rim that enclosed the spokes was the common goal in
the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.

On the other hand, the American case of Kotteakos vs. United States93 illustrates a
wheel conspiracy where multiple conspiracies were established instead of one single
conspiracy. There, Simon Brown, the hub, assisted 31 independent individuals to obtain
separate fraudulent loans from the US Government. Although all the defendants were
engaged in the same type of illegal activity, there was no common purpose or overall plan
among them, and they were not liable for involvement in a single conspiracy. Each loan was
an end in itself, separate from all others, although all were alike in having similar illegal
objects. Except for Brown, the common figure, no conspirator was interested in whether any
loan except his own went through. Thus, the US Supreme Court concluded that there existed
32 separate conspiracies involving Brown rather than one common conspiracy.

CHAIN CONSPIRACY

The chain conspiracy recognized in Estrada vs. Sandiganbayan exists when there is
successive communication and cooperation in much the same way as with legitimate
business operations between manufacturer and wholesaler, then wholesaler and retailer,
and then retailer and consumer.

This involves individuals linked together in a vertical chain to achieve a criminal

objective. Illustrative of chain conspiracy was that involved in United States vs. Bruno,94 of
the US Court of Appeals for the Second Circuit. There, 88 defendants were indicted for a
conspiracy to import, sell, and possess narcotics. This case involved several smugglers who
had brought narcotics to retailers who, in turn, had sold the narcotics to operatives in
Texas and Louisiana for distribution to addicts. The US Court of Appeals for the Second
Circuit ruled that what transpired was a single chain conspiracy in which the smugglers knew
that the middlemen must sell to retailers for distribution to addicts, and the retailers knew
that the middle men must purchase drugs from smugglers. As reasoned by the court, the
conspirators at one end of the chain knew that the unlawful business would not and could not,
stop with their buyers; and those at the other end knew that it had not begun with their
sellers. Each conspirator knew that the success of that part with which he was immediately
concerned was dependent upon success of the whole. This means, therefore, that every
member of the conspiracy was liable for every illegal transaction carried out by other members
of the conspiracy in Texas and in Louisiana.

Once the State proved the conspiracy as a means to commit a crime, each co-
conspirator is as criminally liable as the others, for the act of one is the act of all. A co-
conspirator does not have to participate in every detail of the execution; neither does he have
to know the exact part performed by the co-conspirator in the execution of the criminal
act.95 Otherwise, the criminal liability of each accused is individual and independent.

PENALTIES THAT MAY BE IMPOSED (ARTICLE 21)

PENALTY DEFINED AND EXPLAINED

Penalty is the punishment inflicted by a law for its violation. 96

Penalty is an elastic term with many different shades of meaning; it involves idea of
punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally
confined to pecuniary punishment.97

PENALTIES THAT MAY BE IMPOSED

The provision of Art. 21 of the RPC was explained by the Supreme Court in the case of
United States vs. Parrone (G.R. No. L-7038, 7 January 1913)(En Banc)[Johnson, J.], that:
Art. 21 of the RPC is general in its provisions and in effect prohibits the Government from
punishing any person for any felony or misdemeanor with any penalty which has not been
prescribed by the law. It (Art. 21), therefore, can have no application to any of the provisions of

93
328 U.S. 750 (1946).
94
105 F.2d 921 (2d Cir. 1939).
95
People vs. Del Castillo, supra.
96
Bouvier’s Law Dicitionary
97
Allied vs. Graves, 261 N.C. 3, 134 S.E. 2d 186, 192
 21

the Penal Code for the reason that for every felony or misdemeanor defined in the Penal Code,
a penalty has been prescribed.

The provisions of Article 21 can only be invoked therefore, when a person is being
tried for a felony or a misdemeanor for which no penalty has been prescribed by law. Article
21 is not a penal provision. It neither defines a crime nor provides a punishment for one. It has
simply announced the policy of the Government with reference to the punishment of alleged
criminal acts. It is a guaranty to the citizen of the State that no act of his will be considered
criminal until after the Government has made it so by law and has provided a penalty. It
(Art. 21) is a declaration that no person shall be subject to criminal prosecution for any act
of his until after the State has defined the misdemeanor or crime and has fixed a penalty
therefor. The doctrine announced by this section has been considered of so much
importance to the citizens of a state that many of the States of the Union have been
pleased to include its precepts in their constitutions or have so declared by express
provision of law.

RETROACTIVE EFFECT OF PENAL LAWS (ARTICLE 22)

In the old case of US vs. Parrone supra, the provision of Art. 22 of the RPC was
thoroughly explained by Mr. Justice Johnson: This provision clearly has no direct application
to the provisions of the Penal Code. Its (Art. 22) application to the Penal Code can only be
invoked where some former or subsequent law is under consideration. It must necessarily
relate:

(1) to penal laws existing prior to the Penal Code, in which the penalty was less
severe than those of the Penal Code; or

(2) to laws enacted subsequent to the Penal Code, in which the penalty was more
favorable to the accused.

CLASSIFICATION OF PENALTIES

Art. 25 of the RPC classify penalties due to their gravity—into capital, afflictive,
correctional, and light, viz:

a) Grave felonies are those to which the law attaches the capital punishment
or penalties, which in any of their periods are afflictive, in accordance with Article 25 of
this Code.

b) Less gave felonies are those which the law punishes with penalties which
in their maximum period are correctional, in accordance with the abovementioned article.

c) Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding Forty thousand pesos (P40,000) or both is
provided.

This classification corresponds to the classification of the crimes into grave felonies,
which are punished with a penalty which is afflictive in any of its degrees; less grave felonies
which are punished with a penalty which is correccional in its maximum degrees; and light
felonies are those infractions of law for the commission of which the penalty of arresto
menor or a fine not exceeding Forty thousand pesos (P40,000) or both is provided.98

A fine, whether imposed as a single or as an alternative penalty, shall be considered

an afflictive penalty, if it exceeds One million two hundred thousand pesos (₱1,200,000); a
correctional penalty, if it does not exceed One million two hundred thousand pesos
(₱1,200,000) but is not less than Forty thousand pesos (₱40,000); and a light penalty, if it be
less than Forty thousand pesos (₱40,000).99

From the standpoint of the subject-matter of these penalties, they may also be
classified as:

a) corporal (penalty of death);

b) deprivation of freedom (reclusion, prision, arresto);

98
Art. 9, RPC, as amended by R.A. No. 10951 (approved on 29 August 2017).
99
Art. 26, Rev. Penal Code, as amended by R.A. No. 10951.
 22

c) restriction of freedom (destierro);

d) deprivation of rights (disqualification and suspension) and
e) pecuniary (fine).

According to their divisibility, penalties may be classified into divisible and

indivisible, viz:

a) Divisible penalties, as distinguished from indivisible penalties, are those that

have fixed durations and are divisible into three periods: maximum, medium, and minimum.

b) The indivisible penalties are death, reclusion perpetua, perpetual

disqualification, whether absolute or special, and public censure.

Penalties may also be either principal or accessory, viz:

a) Principal penalties are those expressly imposed by the court in the judgment
of conviction in accordance with the provision of this Code.

b) Accessory penalties100 are those that are deemed included in the imposition of
the penalties without any special pronouncement made in the judgment of conviction. 101

Penalties may also be imposed in certain crimes, viz:

a) Article 114. Treason. – Any Filipino citizen who levies war against the
Philippines or adheres to her enemies, giving them aid or comfort within the Philippines or
elsewhere, shall be punished by reclusion perpetua to death and shall pay a fine not to exceed
Four million pesos (P4, 000,000).

No person shall be convicted of treason unless on the testimony of two (2) witnesses
at least to the same over act or on confession of the accused in open court.

Likewise, an alien, residing in the Philippines, who commits acts of treason as defined
in paragraph 1 of this article shall be punished by reclusion temporal to death and shall pay a
fine not to exceed Four million pesos (P4, 000,000).

b) Article 123. Qualified piracy. – The penalty of reclusion temporal to death

shall be imposed upon those who commit any of the crimes referred to in the preceding article,
under any of the following circumstances:

1. Whenever they have seized a vessel by boarding or firing upon the same;

2. Whenever the pirates have abandoned their victims without means of saving
themselves; or

3. Whenever the crime is accompanied by murder, homicide, physical injuries or

rape.

c) Article 246. Parricide. – Any person who shall kill his father, mother, or child,
whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse,
shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to
death.

d) Article 248. Murder. – Any person who, not falling within the provisions of
Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion
temporal in its maximum period to death, if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, 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.

100
See Arts. 40 to 44, Rev. Penal Code.
101
Art. 73, Rev. Penal Code; cited in Francisco, V.J. (1954). The Revised Penal Code (Act No. 3815). Annotated and
Commented. Book One. Second Ed. (pp. 659-660). Manila, Phil.: East Publishing
 23

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a

vessel, derailment or assault upon a street car or locomotive, fall of an airship,
by means of motor vehicles, or with the use of any other means involving great
waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph,

or 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.

d) Article 267. Kidnapping and serious illegal detention. – Any private

individual who shall kidnap or detain another, or in any other manner deprive him of his
liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.

e) Article 294. Robbery with violence against or intimidation of persons;

Penalties. – Any person guilty of robbery with the use of violence against or intimidation of
any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of

the robbery, the crime of homicide shall have been committed.

2. The penalty of reclusion temporal in its medium period to reclusion perpetua

when the robbery shall have been accompanied by rape or intentional
mutilation, or if by reason or on occasion of such robbery, any of the physical
injuries penalized in subdivision 1 of Article 263 shall have been inflicted;
Provided, however, that when the robbery accompanied with rape is
committed with a use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death (As amended by PD No. 767).

3. The penalty of reclusion temporal, when by reason or on occasion of the

robbery, any of the physical injuries penalized in subdivision 2 of the article
mentioned in the next preceding paragraph, shall have been inflicted.

4. The penalty of prision mayor in its maximum period to reclusion temporal in its
medium period, if the violence or intimidation employed in the commission of
the robbery shall have been carried to a degree clearly unnecessary for the
commission of the crime, or when the course of its execution, the offender shall
have inflicted upon any person not responsible for its commission any of the
physical injuries covered by sub-divisions 3 and 4 of said Article 23.

5. The penalty of prision correccional in its maximum period to prision mayor in

its medium period in other cases. (As amended by R.A. 18).

WHEN AFFLICTIVE, CORRECTIONAL, OR LIGHT PENALTY (ART. 26)

A fine, whether imposed as a single or as an alternative penalty, shall be considered

an afflictive penalty, if it exceeds One million two hundred thousand pesos (₱1,200,000).
 24

WHEN FINE IS CONSIDERED AS CORRECTIONAL PENALTY

Fine is considered as a correctional penalty, if it does not exceed One million two
hundred thousand pesos (₱1,200,000) but is not less than Forty thousand pesos (₱40,000).

WHEN FINE IS CONSIDERED AS LIGHT PENALTY

Fine is considered as a light penalty, if it be less than Forty thousand pesos (₱40,000).

DURATION (ARTICLES 27-29) AND EFFECTS (ARTICLES 30-39)

WHY THERE IS ONE (1) DAY IN THE DURATION OF PENALTIES

To distinguish the maximum of a given penalty from that of the minimum of the
penalty next higher in degree, the period of 1 day is added to the latter. Thus, the maximum of
arresto mayor, is 30 days and the minimum of arresto mayor, which is a penalty next higher in
degree, is 1 month and 1 day.

RECLUSION PERPETUA

The penalty of reclusion perpetua shall be from twenty years and one day to forty
years.

COMPUTATION OF PENALTIES (ART. 28)

WHEN OFFENDER IS IN PRISON

When the offender is in prison, either because the offense charged is non-bailable or,
because he can not furnish the bail fixed by the court, the duration of the temporary penalty
imposed upon him shall commence on the day on which the sentence is made final. A
sentence is final when it cannot be reviewed by appeal either because the time to appeal has
already lapsed, or because he failed to appeal therefrom. In this case, however, the offender is
entitled to be credited with one-half of the time during which he may have undergone
preventive imprisonment, unless he comes under the exceptions provided under Art. 29 of this
Code.

WHEN OFFENDER IS NOT IN PRISON

When the offender is not in prison and the penalty consists of deprivation of liberty,
the term of the duration of such penalty shall be computed from the date that the offender is
placed at the disposal of the judicial authorities for the enforcement of the penalty.

Where the penalty is not deprivation of liberty, the duration of the penalty shall be
computed only from the day on which the defendant actually commences to serve the
sentence.

EFFECTS OF THE PENALTIES OF PERPETUAL OR TEMPORARY ABSOLUTE

DISQUALIFICATION (ART. 30)

37.Q. What is the meaning of perpetual special disqualification as an accessory

penalty?

37.A. In Jalosjos vs. COMELEC (G.R. No. 205033, 18 June 2013)(En Banc)[Perlas-
Bernabe, J.], the High Court ruled that: The use of the word "perpetual" in the aforementioned
accessory penalty connotes a lifetime restriction and in this respect, does not depend on the
length of the prison term which is imposed as its principal penalty. Instructive on this point is
the Court’s ruling in Lacuna v. Abes,102 where the court explained the meaning of the term
"perpetual" as applied to the penalty of disqualification to run for public office:

The accessory penalty of temporary absolute disqualification disqualifies the convict

for public office and for the right to vote, such disqualification to last only during the term of
the sentence (Article 27, paragraph 3, & Article 30, Revised Penal Code) that, in the case of
Abes, would have expired on 13 October 1961.

102
24 SCRA 78 (27 August 1968).
 25

But this does not hold true with respect to the other accessory penalty of perpetual
special disqualification for the exercise of the right of suffrage. This accessory penalty
deprives the convict of the right to vote or to be elected to or hold public office perpetually,
as distinguished from temporary special disqualification, which lasts during the term of
the sentence.

Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of
Aratea,103 Jalosjos, Jr. and Cardino,104 held:

Clearly, Lacuna instructs that the accessory penalty of perpetual special

disqualification "deprives the convict of the right to vote or to be elected to or hold public office
perpetually."

The accessory penalty of perpetual special disqualification takes effect immediately

once the judgment of conviction becomes final. The effectivity of this accessory penalty does
not depend on the duration of the principal penalty, or on whether the convict serves his jail
sentence or not. The last sentence of Article 32 states that "the offender shall not be permitted
to hold any public office during the period of his [perpetual special] disqualification." Once the
judgment of conviction becomes final, it is immediately executory. Any public office that the
convict may be holding at the time of his conviction becomes vacant upon finality of the
judgment, and the convict becomes ineligible to run for any elective public office perpetually.

All told, applying the established principles of statutory construction, and more
significantly, considering the higher interests of preserving the sanctity of our elections, the
Court holds that Section 40(a) of the LGC has not removed the penalty of perpetual
absolute disqualification which petitioner continues to suffer. Thereby, he remains
disqualified to run for any elective office pursuant to Article 30 of the RPC.

PENALTY OF PERPETUAL OR TEMPORARY SPECIAL DISQUALIFICATION (ART. 31)

Special absolute disqualification whose effects are provided in this article is a

principal penalty, in addition to the penalty which consists of the deprivation of the liberty,
imposed upon the offender in the crimes of:

a) Estafa committed by a public officer (Art. 214);

b) Malversation (Art. 217);
c) Infidelity in the custody of prisoners (Art. 223);
d) Revelation of secrets by an officer (Art. 229);
e) Disobedience to order of superior officer, when said order was suspended by
inferior officer (Art. 232);
f) Refusal of Assistance (Art. 233); and
g) Special disqualification from filling the office of a guardian (Art. 346, par. 3).

Perpetual special disqualification is not imposed as an accessory penalty by this Code.

As to duration and the crimes to which temporary special disqualification is imposed

as a principal penalty or an accessory penalty, refer to Art. 27 of this work.

EFFECT OF THE PENALTIES OF PERPETUAL OR TEMPORARY SPECIAL

DISQUALIFICATION FOR THE EXERCISE OF THE RIGHT OF SUFFRAGE (ART. 32)

In the case of Ara Tea vs. COMELEC and Antipolo (G.R. No. 195229, 9 October 2012)
(En Banc)[Carpio, J.], the High Court explained the effect of the penalties under Art. 32 of the
RPC: Under Article 32 of the Revised Penal Code, perpetual special disqualification means
that "the offender shall not be permitted to hold any public office during the period of his
disqualification,‖ which is perpetually. Both temporary absolute disqualification and
perpetual special disqualification constitute ineligibilities to hold elective public office. A
person suffering from these ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his certificate of candidacy that he is
eligible to so run.

In Lacuna v. Abes,105 the Court, speaking through Justice J.B.L. Reyes, explained the
import of the accessory penalty of perpetual special disqualification:
103
Aratea vs. COMELEC, 683 SCRA 105 (12 October 2012).
104
Jalosjos, Jr. vs. COMELEC & Cardino vs. COMELEC, supra.
105
133 Phil. 770 (1968).
 26

The word "perpetually" and the phrase "during the term of the sentence" should be
applied distributively to their respective antecedents; thus, the word "perpetually" refers to
the perpetual kind of special disqualification, while the phrase "during the term of the
sentence" refers to the temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily different because the provision,
instead of merging their durations into one period, states that such duration is "according to
the nature of said penalty" — which means according to whether the penalty is the perpetual
or the temporary special disqualification.

Clearly, Lacuna instructs that the accessory penalty of perpetual special

disqualification "deprives the convict of the right to vote or to be elected to or hold public
office perpetually.‖

The accessory penalty of perpetual special disqualification takes effect immediately

once the judgment of conviction becomes final. The effectivity of this accessory penalty does
not depend on the duration of the principal penalty, or on whether the convict serves his jail
sentence or not. The last sentence of Article 32 states that "the offender shall not be
permitted to hold any public office during the period of his [perpetual special]
disqualification." Once the judgment of conviction becomes final, it is immediately executory.
Any public office that the convict may be holding at the time of his conviction becomes vacant
upon finality of the judgment, and the convict becomes ineligible to run for any elective
public office perpetually. In the case of Lonzanida, he became ineligible perpetually to
hold, or to run for, any elective public office from the time the judgment of conviction
against him became final. The judgment of conviction was promulgated on 20 July 2009
and became final on 23 October 2009, before Lonzanida filed his certificate of candidacy on
1 December 2009.

Perpetual special disqualification is a ground for a petition under Section 78 of the

Omnibus Election Code because this accessory penalty is an ineligibility, which means that
the convict is not eligible to run for public office, contrary to the statement that Section 74
requires him to state under oath in his certificate of candidacy. As this Court held in Fermin v.
Commission on Elections,106 the false material representation may refer to "qualifications or
eligibility.‖ One who suffers from perpetual special disqualification is ineligible to run for
public office. If a person suffering from perpetual special disqualification files a certificate of
candidacy stating under oath that "he is eligible to run for (public) office," as expressly
required under Section 74, then he clearly makes a false material representation that is a
ground for a petition under Section 78.

EFFECTS OF THE PENALTIES OF SUSPENSION FROM ANY PUBLIC OFFICE,

PROFESSION OR CALLING, OR THE RIGHT OF SUFFRAGE (ART. 33); CORRELATION OF
ARTICLE 33 TO ARTICLE 43, 44 AND 24 (3) OF THE REVISED PENAL CODE

The provision of Arts. 43, 44 and 24 (3) relevantly provides:

ARTICLE 43. Prision correccional; Its accessory penalties.— The penalty of prision
correccional shall carry with it that of suspension from public office, from the right to
follow a profession or calling, and that of perpetual special disqualification from the right
of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in the article although pardoned as to
the principal penalty, unless the same shall have been expressly remitted in the pardon.

ARTICLE 44. Arresto; Its accessory penalties.— The penalty of arresto shall carry
with it that of suspension of the right too hold office and the right of suffrage during the
term of the sentence.

ARTICLE 24. Measures of prevention or safety which are nor considered

penalties.— The following shall not be considered as penalties:

x-x-x-x

3. Suspension from the employment of public office during the trial or in order
to institute proceedings.

x-x-x-x

106
574 SCRA 782 (18 December 2008).
 27

In the case of Lacuna v. Abes,107 the Court En Banc explained therein that then Mayor-
elect Benjamin Abes was released from confinement on 7 April 1959 by virtue of a conditional
pardon granted by the President of the Philippines, remitting only the unexpired portion of the
prison term and fine. It then clarified that without the pardon, his maximum sentence would
have been served on 13 October 1961. Accordingly, the Court said that the accessory penalty
of temporary absolute disqualification would have barred him for seeking public office and for
exercising his right to vote until 13 October 1961.

The duration of their suspension shall be the same as that of their principal penalty
sans the ISL; that is, for four years and two months 108 or until they have served their sentence
in accordance with law. Their suspension takes effect immediately, once the judgment of
conviction becomes final.109

It was further point out that if the length of their imprisonment exceeds 18 months,
they shall furthermore suffer a perpetual special disqualification from the right of suffrage.
Under Article 32 of the Revised Penal Code, if this accessory penalty attaches, it shall forever
deprive them of the exercise of their right (a) to vote in any popular election for any public
office; (b) to be elected to that office; and (c) to hold any public office. 110 Any public office that
they may be holding becomes vacant upon finality of the judgment.111 The aforementioned
accessory penalties can only be wiped out if expressly remitted in a pardon. 112

Of course, the aforementioned accessory penalties are without prejudice to a grant of

probation, should the trial court find them eligible therefor.

As we explained in Baclayon,113 the grant of probation suspends the execution of the

principal penalty of imprisonment, as well as that of the accessory penalties. We have
reiterated this point in Moreno v. Commission on Elections:114

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation
is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held
that the grant of probation to petitioner suspended the imposition of the principal penalty of
imprisonment, as well as the accessory penalties of suspension from public office and from the
right to follow a profession or calling, and that of perpetual special disqualification from the
right of suffrage. We thus deleted from the order granting probation the paragraph which
required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from
public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period imposed upon Moreno were
similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of suspension from
public office is put on hold for the duration of the probation. x x x x. During the period of
probation, the probationer does not serve the penalty imposed upon him by the court but is
merely required to comply with all the conditions prescribed in the probation order.

107
133 Phil. 770 (1968)
108
See Art. 27 of the Revised Penal Code, which provides: "Prisión correccional, suspensión, and destierro.— The
duration of the penalties of prisión correccional, suspensión, and destierro shall be from six months and one day to
six years, except when the suspension is imposed as an accessory penalty, in which case, its duration shall be that
of the principal penalty" and Art. 33, which states: "Effects of the Penalties of cont.
Suspension from Any Public Office, Profession or Calling, or the Right of Suffrage.— The suspension from
public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from
holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The
person suspended from holding public office shall not hold another having similar functions during the period of
his suspension." Cf: Lacuna vs. Abes, 133 Phil. 770 (1968). The Court En Banc explained therein that then Mayor-
elect Benjamin Abes was released from confinement on 7 April 1959 by virtue of a conditional pardon granted by
the President of the Philippines, remitting only the unexpired portion of the prison term and fine. It then clarified
that without the pardon, his maximum sentence would have been served on 13 October 1961. Accordingly, the
Court said that the accessory penalty of temporary absolute disqualification would have barred him for seeking
public office and for exercising his right to vote until 13 October 1961.
109
Jalosjos vs. Commission on Elections, 683 SCRA 1 (9 October 2012).
110
See Jalosjos vs. Commission on Elections, supra (citing Lacuna vs. Abes, supra); Aratea vs. Commission on
Elections, 683 SCRA 105 (9 October 2012); People vs. Silvallana, 61 Phil. 636 (1935).
111
Jalosjos vs. Commission on Elections, supra.
112
Revised Penal Code, Art. 36. See Jalosjos vs. Commission on Elections, 698 SCRA 742 (18 June 2013); Monsanto vs.
Factoran, 252 Phil. 192 (1989); Lacuna vs. Abes, supra.
113
Baclayon vs. Mutia, 214 Phil. 126 (1984).
114
530 Phil. 279 (2006).
 28

CIVIL INTERDICTION (ART. 34)

Civil interdiction is an accessory penalty imposed by law when the principal penalty
imposed upon the offender for the commission of a crime is more than twelve years
imprisonment. Such accessory penalty has the effect of depriving the offender during the time
of his sentence of the rights of parental authority, of guardianship, either as to the person or
property of any ward, of marital authority, of the right to mange his property and of the right to
dispose of such property by any act or any conveyance inter vivos.

Civil Interdiction, the effects of which are provided in this article, is an accessory
penalty when the principal penalty imposed upon the offender is death and such penalty is
not executed by reason of commutation or pardon. Such civil interdiction shall attach to the
offender during the period of thirty years following the date of his sentence. 115

When the principal penalty imposed upon the offender is reclusion perpetua or
reclusion temporal, the accessory penalty of civil interdiction for life or during the period of the
sentence, as the case may be, is also imposed.116

CONVICTION OF ADULTERY DOES NOT CARRY THE ACCESSORY OF CIVIL

INTERDICTION

In the case of Maquilan vs. Maquilan (524 SCRA 166, 8 June 2007)(Third Division)
[Austria-Martinez, J.], it was held that: The conviction of adultery does not carry the
accessory of civil interdiction. Thus: Under Article 333 of the same Code, the penalty for
adultery is prision correccional in its medium and maximum periods. Article 333 should be
read with Article 43 of the same Code. The latter provides:

Art. 43. Prision correccional—Its accessory penalties.—The penalty of prision

correccional shall carry with it that of suspension from public office, from the right to follow a
profession or calling, and that of perpetual special disqualification from the right of suffrage, if
the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, the crime of adultery does not
carry the accessory penalty of civil interdiction which deprives the person of the rights to
manage her property and to dispose of such property inter vivos.

EFFECTS OF BOND TO KEEP THE PEACE (ART. 35)

Under this provision of the Revised Penal Code as amended, if the person sentenced to
give bond to keep the peace fails to do so as required by the court, such person shall be
detained for a period which shall in no case exceed six (6) months, if he shall have been
prosecuted for a grave or less grave felony and shall not exceed thirty (30) days, if for a light
felony. Bond to keep the peace is a penalty which may be imposed for the crime of grave
threats under Art. 282 and light threats under Art. 283. It relevantly provides that:

Article 282. Grave threats. – Any person who shall threaten another with the infliction
upon the person, honor or property of the latter or of his family of any wrong amounting to a
crime, shall suffer:

1. The penalty next lower in degree than that prescribed by law for the crime be
threatened to commit, if the offender shall have made the threat demanding money or
imposing any other condition, even though not unlawful, and said offender shall have attained
his purpose. If the offender shall not have attained his purpose, the penalty lower by two (2)
degrees shall be imposed.

If the threat be made in writing or through a middleman, the penalty shall be imposed
in its maximum period.

2. The penalty of arresto mayor and a fine not exceeding One hundred
thousand pesos (P100,000), if the threat shall not have been made subject to a condition. (As
amended by Section 70, R.A. No. 10951, approved on 29 August 2017)

115
Art. 40, Revised Penal Code.
116
Art. 41, Revised Penal Code.
 29

Article 283. Light threats. – Any threat to commit a wrong not constituting a crime,
made in the manner expressed in subdivision 1 of the next preceding article, shall be punished
by arresto mayor.

On another plane, under Article 284, the person making the threats may also be
required to give bail not to molest the person threatened and if he shall fail to give such bail,
he shall be sentenced to destierro. Article 284 provides that:

Article 284. Bond for good behavior. – In all cases falling within the two next
preceding articles, the person making the threats may also be required to give bail not to
molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to
destierro.

PARDON; ITS EFFECT (ART. 36)

PROBLEM:

Former President Joselito Simburoso of the Republic of Sampaga was convicted by the
Peoples Court for the crime of Plunder. However, he was granted a Presidential Pardon by
President Laging Maligaya her former Vice President who assumed the Presidency.

President Simburoso run for the position of City Mayor of the City of Iliyan, the capital
City of the Republic of Sampaga.

38.Q. Was the granting of Presidential Pardon restored President‘s Simburo‘s

political rights?

38.A. Yes. In the case of Risos-Vidal vs. COMELEC (747 SCRA 210, 21 January
2015)(En Banc)[Leonardo-De Castro, J.], a case with similar factual melieu in the problem, the
High Court ruled that: From both law and jurisprudence, the right to seek public elective office
is unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted to him, he
regained his FULL civil and political rights – including the right to seek elective office.

WHAT ARE INCLUDED IN COST (ART. 37) AS PROVIDED BY THE RULES OF COURT

The provision of Section 1, Rule 142 of the Rules of court provides with what is/are
included in cost or more particularly called costs of the suit: Section 1. Cost ordinarily follow
results of suit. — Unless otherwise provided in these rules, cost shall be allowed to the
prevailing party as a matter of course, but the court shall have power, for special reasons, to
adjudge that either party shall pay the costs of an action, or that the same be divided, as may
be equitable. No costs shall be allowed against the Republic of the Philippines unless
otherwise provided by law.

ARTICLE 38 AS EXPLAINED UNDER ARTICLES 106 AND 107 OF THE RPC

REPARATION OF DAMAGE CAUSED, HOW MADE

In the reparation of damage, Art. 106 of the RPC provides that:

Article 106. Reparation; How made. – The court shall determine the amount of
damage, taking into consideration the price of the thing, whenever possible, and its special
sentimental value to the injured party, and reparation shall be made accordingly.

INDEMNIFICATION

Indemnification is very well explained under Art. 107 of the RPC, viz:

Article 107. Indemnification; What is included. – Indemnification for consequential

damages shall include not only those caused the injured party, but also those suffered by his
family or by a third person by reason of the crime.
 30

SUBSIDIARY IMPRISONMENT (ART. 39)

39.Q. If the penalty for violation of B.P. Blg. 22 is fine instead of imprisonment,
can subsidiary imprisonment be imposed in case of insolvency?

39.A. No. In People vs. Alapan (G.R. No. 199527, 10 January 2018)(Third Division)
[Maritres, J.], a case for violation of B.P. Blg. 22, the penalty of fine instead of imprisonment,
pursuant to Administrative Circulars No. 12-2000 and 13- 2001 was imposed against the
accused. As to the issue subsidiary imprisonment in case of insolvency, the High Court held
that: Subsidiary imprisonment in case of insolvency must be expressly stated in the
judgment of conviction. There is not a single provision in the Code from which it may be
logically inferred that an accused may automatically be made to serve subsidiary
imprisonment in a case where he has been sentenced merely to pay a fine and has been
found to be insolvent. Such would be contrary to the legal provisions above-cited and to the
doctrine laid down in United States vs. Miranda.117

The Supreme Court concluded that an accused who has been sentenced by final
judgment to pay a fine only and is found to be insolvent and could not pay the fine for this
reason, cannot be compelled to serve the subsidiary imprisonment provided for in article 39 of
the Revised Penal Code.

INDIVISIBLE PENALTIES UNDER THE REVISED PENAL CODE

Under the scales provided in Article 71 of the RPC, there are four (4) indivisible
penalties, to wit:

a) Death118
b) reclusion perpetua
c) perpetual absolute disqualification and
d) public censure (Scale 2)

The penalty immediately lower in degree than death is reclusion perpetua (Scale No.
1); that immediately lower than absolute disqualification is temporary absolute
disqualification (Scale No.2); and that immediately lower in degree than public censure is a
fine not exceeding P200.00.119

Art. 71. Graduated scales. — In the case in which the law prescribes a penalty lower
or higher by one or more degrees than another given penalty, the rules prescribed in Article 61
shall be observed in graduating such penalty.

The lower or higher penalty shall be taken from the graduated scale in which is
comprised the given penalty:

The courts, in applying such lower or higher penalty, shall observe the following
graduated scales:

SCALE NO. 1

1. Death
2. Reclusion perpetua
3. Reclusion temporal

117
2 Phil. 606.
118
Republic Act No. 9346 (24 June 2006).
AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES
SECTION 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight
Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal
Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise
known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the
death penalty are hereby repealed or amended accordingly.
SEC. 2. In lieu of the death penalty, the following shall be imposed.
(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties
of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the
penalties of the Revised Penal Code.
SEC. 3. Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced
to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known as
the Indeterminate Sentence Law, as amended. x-x-x-x
119
See Art. 71 in connection with Art. 26 of the RPC
 31

4. Prision mayor
5. Prision correctional
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine120

xxxx

EXECUTION AND SERVICE

PROBATION LAW (PD 968, AS AMENDED BY R.A. NO. 10707)

40.Q. When should the application for probation be filed?

40.A. In Dimakuta vs. People (773 SCRA 228, 20 October 2015)(En Banc)[Peralta,
J.], it was held that: Section 4 of the Probation Law provides that the application for probation
must be filed with the trial court within the 15-day period for perfecting an appeal. The need
to file it within such period is intended to encourage offenders, who are willing to be
reformed and rehabilitated, to avail themselves of probation at the first opportunity. If the
application for probation is filed beyond the 15-day period, then the judgment becomes final
and executory and the lower court can no longer act on the application for probation.

41.Q. Can the accused still apply for probation after filing a notice of appeal?

41.A. No. If a notice of appeal is perfected, the trial court that rendered the
judgment of conviction is divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and executory.

In view of the latest amendment to Section 4 of the Probation Law that no application
for probation shall be entertained or granted if the defendant has perfected an appeal from
the judgment of conviction, prevailing jurisprudence121 treats appeal and probation as
mutually exclusive remedies because the law is unmistakable about it.122 Indeed, the law is
very clear and a contrary interpretation would counter its envisioned mandate. Courts have no
authority to invoke liberal interpretation or the spirit of the law where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for doubt or
interpretation.123 To be sure, the remedy of convicted felons who want to avail of the
benefits of probation even after the remedy of an appeal is to go to the Congress and ask
for the amendment of the law. To surmise a converse construal of the provision would be
dangerously encroaching on the power of the legislature to enact laws and is tantamount
to judicial legislation.

42.Q. What is the purpose of the Probation Law?

42.A. In this jurisdiction, the wisdom behind the Probation Law is outlined in its
stated purposes, to wit:

(a) promote the correction and rehabilitation of an offender by providing him with
individualized treatment;

(b) provide an opportunity for the reformation of a penitent offender which

might be less probable if he were to serve a prison sentence; and

(c) prevent the commission of offenses.124

43.Q. Is there an instance when an application for probation may still be

allowed despite the filing of a notice of appeal? Explain.

120
See Revised Penal Code, Art. 71.
121
Sable vs. People, et al., supra; Francisco vs. Court of Appeals, 313 Phil. 241 (1995); and Llamado vs. Court of
Appeals, supra.
122
Sable vs. People, et al.
123
Llamado vs. Court of Appeals, supra.
124
Sec. 2, P.D. No. 968.
 32

43.A. Yes. According to Mr. Justice Peralta: As I have previously indicated in

Colinares, if this Court will adopt as jurisprudential doctrine the opinion that an accused may
still be allowed to apply for probation even if he has filed a notice of appeal, it must be
categorically stated that such appeal must be limited to the following grounds:

(1) When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused to apply for
probation; and

(2) When the appeal is merely intended to review the crime for which the accused
was convicted and that the accused should only be liable to the lesser offense which is
necessarily included in the crime for which he was originally convicted and the proper penalty
imposable is within the probationable period.

In both instances, the penalty imposed by the trial court for the crime committed
by the accused is more than six years; hence, the sentence disqualifies the accused from
applying for probation. The accused should then be allowed to file an appeal under the afore-
stated grounds to seek a review of the crime and/or penalty imposed by the trial court. If, on
appeal, the appellate court finds it proper to modify the crime and/or the penalty imposed,
and the penalty finally imposed is within the probationable period, the accused should still
be allowed to apply for probation.

In addition, before an appeal is filed based on the grounds enumerated above, the
accused should first file a motion for reconsideration of the decision of the trial court
anchored on the above-stated grounds and manifest his intent to apply for probation if the
motion is granted. The motion for reconsideration will give the trial court an opportunity to
review and rectify any errors in its judgment, while the manifestation of the accused will
immediately show that he is agreeable to the judgment of conviction and does not intend to
appeal from it, but he only seeks a review of the crime and/or penalty imposed, so that in the
event that the penalty will be modified within the probationable limit, he will immediately
apply for probation. Without such motion for reconsideration, the notice of appeal should be
denied outright.

The notice of appeal should contain the following averments:

(1) that an earlier motion for reconsideration was filed but was denied by the trial
court;

(2) that the appeal is only for reviewing the penalty imposed by the lower court or
the conviction should only be for a lesser crime necessarily included in the crime charged in
the information; and

(3) that the accused-appellant is not seeking acquittal of the conviction.

To note, what Section 4 of the Probation Law prohibits is an appeal from the judgment
of conviction, which involves a review of the merits of the case and the determination of
whether the accused is entitled to acquittal. However, under the recommended grounds for
appeal which were enumerated earlier, the purpose of the appeal is not to assail the judgment
of conviction but to question only the propriety of the sentence, particularly the penalty
imposed or the crime for which the accused was convicted, as the accused intends to apply for
probation upon correction of the penalty or conviction for the lesser offense. If the CA finds it
proper to modify the sentence, and the penalty finally imposed by the appellate court is within
the probationable period, or the crime for which the accused is eventually convicted imposes a
probationable penalty, application for probation after the case is remanded to the trial court
for execution should be allowed.

It is believed that the recommended grounds for appeal do not contravene Section 4 of
the Probation Law, which expressly prohibits only an appeal from the judgment of conviction.
In such instances, the ultimate reason of the accused for filing the appeal based on the afore-
stated grounds is to determine whether he may avail of probation based on the review by the
appellate court of the crime and/or penalty imposed by the trial court. Allowing the afore-
stated grounds for appeal would give an accused the opportunity to apply for probation if his
ground for appeal is found to be meritorious by the appellate court, thus, serving the purpose
of the Probation Law to promote the reformation of a penitent offender outside of prison.
 33

44.Q. What are the grounds for the non-granting of the application for probation?
Explain.

44.A. Probation should not be granted to the accused in the following instances:

(1) When the accused is convicted by the trial court of a crime where the penalty
imposed is within the probationable period or a fine, and the accused files a notice of
appeal; and

(2) When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the correction of the penalty
imposed by the trial court or for a conviction to a lesser crime, which is necessarily
included in the crime in which he was convicted where the penalty is within the
probationable period.

Both instances violate the spirit and letter of the law, as Section 4 of the Probation
Law prohibits granting an application for probation if an appeal from the sentence of
conviction has been perfected by the accused.

In Dimakuta vs. People supra, petitioner appealed the trial court's judgment of
conviction before the CA alleging that it was error on the part of the RTC to have found him
guilty of violating Section 5(b), Article III of R.A. No. 7610. He argued that the RTC should not
have given much faith and credence to the testimony of the victim because it was tainted with
inconsistencies. Moreover, he went on to assert that even assuming he committed the acts
imputed on him, still there was no evidence showing that the lascivious acts were committed
without consent or through force, duress, intimidation or violence because the victim at that
time was in deep slumber. It is apparent that petitioner anchored his appeal on a claim of
innocence and/or lack of sufficient evidence to support his conviction of the offense charged,
which is clearly inconsistent with the tenor of the Probation Law that only qualified penitent
offenders are allowed to apply for probation. The CA, therefore, did not err in applying the
similar case of Lagrosa vs. People125 wherein the protestations of petitioners therein did not
simply assail the propriety of the penalties imposed but meant a profession of guiltlessness, if
not complete innocence.

To be sure, if petitioner intended in the first instance to be entitled to apply for

probation he should have admitted his guilt and buttressed his appeal on a claim that the
penalty imposed by the RTC was erroneous or that he is only guilty of a lesser offense
necessarily included in the crime for which he was originally convicted. Unfortunately for him,
he already perfected his appeal and it is late in the day to avail the benefits of probation
despite the imposition of the CA of a probationable penalty.

JUVENILE JUSTICE AND WELFARE ACT (RA 9344, AS AMENDED BY R.A. NO. 10630)

45.Q. If a minor acted with discernment at the time of the commission of the
crime, how should minority be appreciated?

45.A. In the case of People vs. Gambao (706 SCRA 508, 1 October 2013)(En Banc)
[Perez, J.], the High Court made the following pronouncements: Pursuant to the passing of
R.A. No. 9344, a determination of whether she acted with or without discernment is
necessary. In Gambao, considering that the accused acted with discernment when she was
17 years old at the time of the commission of the offense, her minority should be
appreciated not as an exempting circumstance, but as a privileged mitigating circumstance
pursuant to Article 68 of the Revised Penal Code.

46.Q. Until when can the suspension of sentence be given to a minor offender?

46.A. People vs. Gambao supra, teaches us that: Under Section 38 of R.A. No.
9344, the suspension of sentence of a child in conflict with the law shall still be applied even
if he/she is already eighteen (18) years of age or more at the time of the pronouncement of
his/her guilt.

Unfortunately, at the present age of 31, he/she can no longer benefit from the aforesaid
provision, because under Article 40 of R.A. No. 9344, the suspension of sentence can be

125
453 Phil. 270 (2003).
 34

availed of only until the child in conflict with the law reaches the maximum age of twenty-
one (21) years. This leaves the Court with no choice but to pronounce judgment.

47.Q. In a kidnapping for ransom case, what is the proper penalty to be imposed
on an accomplice who is a minor?

47.A. In Gambao, the Supreme Court held that: Perpenian is found guilty beyond
reasonable doubt as an accomplice in the crime of kidnapping for ransom. Since this Court
has ruled that death as utilized in Article 71 of the Revised Penal Code shall no longer form
part of the equation in the graduation of penalties pursuant to R.A. No. 9346, the penalty
imposed by law on accomplices in the commission of consummated kidnapping for ransom
is Reclusion Temporal, the penalty one degree lower than what the principals would bear
(Reclusion Perpetua). Applying Article 68 of the Revised Penal Code, the imposable penalty
should then be adjusted to the penalty next lower than that prescribed by law for
accomplices. This Court, therefore, holds that as to Perpenian, the penalty of Prision
Mayor, the penalty lower than that prescribed by law (Reclusion Temporal), should be
imposed.

Applying the Indeterminate Sentence Law, the minimum penalty, which is one degree
lower than the maximum imposable penalty, shall be within the range of Prision Correccional;
and the maximum penalty shall be within the minimum period of Prision Mayor, absent any
aggravating circumstance and there being one mitigating circumstance. Hence, the Court
imposes the indeterminate sentence of six (6) months and one (1) day of Prision
Correccional, as minimum, to six (6) years and one (1) day of Prision Mayor, as maximum.

As regards Perpenian’s possible confinement in an agricultural camp or other training

facility in accordance with Section 51 of R.A. 9344, this Court held in People vs. Jacinto126 that
the age of the child in conflict with the law at the time of the promulgation of the judgment is
not material. What matters is that the offender committed the offense when he/she was still of
tender age. This Court, however, finds such arrangement no longer necessary in view of
the fact that Perpenian‘s actual served term has already exceeded the imposable penalty
for her offense. For such reason, she may be immediately released from detention.

EXTINCTION OF CRIMINAL LIABILITY (ARTICLES 89-99)

48.Q. What is the effect of the death of the accused-appellant during the
pendency of his appeal?

A. In the following cases:

1. People vs. Antido (G.R. No. 208651, 14 March 2018)(Special Second Division)
[Perlas-Bernabe, J.]

2. People vs. Dimaala (831 SCRA 270, 17 July 2017)(Special Third Division)
[Perlas-Bernabe, J.]

3. People vs. Jao (827 SCRA 157, 7 June 2017)(First Division) [Perlas-Bernabe,
J.]

4. People vs. Toukyo (821 SCRA 191, 20 March 2017)(First Division)[Perlas-

Bernabe, J.](Accused died during the pendency of the appeal for violations of Section 11, R.A.
No. 9165)

5. People vs. Egagamao (799 SCRA 507, 3 August 2016)(First Division)[Perlas-

Bernabe, J.]

6. People vs. Cenido (797 SCRA 102, 18 July 2016)(First Division)[Perlas-

Bernabe, J.]

7. People vs. Dionaldo (770 SCRA 350, 9 September 2015)(First

Division)[Perlas-Bernabe, J.], the High Court ruled that: The criminal action, as well as the
civil action for the recovery of the civil liability ex delicto, is ipso facto extinguished.127

126
645 SCRA 590 (16 March 2011).
127
See People vs. Layag, G.R. No. 214875 (17 October 2016).
 35

It is settled that the death of accused-appellant prior to his final conviction by the
Court renders dismissible the criminal case against him.128 Article 89(1) of the Revised Penal
Code provides that the criminal liability is totally extinguished by the death of the accused.

In People vs. Culas,129 citing People vs. Layag,130 the Supreme Court explained the
effects of the death of an accused pending appeal on his liabilities, as follows:

(1) Death of the accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, the death of the accused prior to final judgment terminates his
criminal liability and only the civil liability directly arising from and based solely on the
offense committed, i.e., civil liability ex delicto in senso strictiore.

(2) Corollary, the claim for civil liability survives notwithstanding the death of
the accused, if the same may also be predicated on a source of obligation other than delict.

In this relation, the Court stresses that accused-appellant's civil liability based on
sources other than the subject delict survives, and the victim may file a separate civil
action against the estate of accused-appellant, as may be warranted by law and procedural
rules.

In People vs. Soria,131 the Supreme Court reiterated its decision in People vs.
Amistoso,132 that the death of the accused pending appeal of his conviction extinguishes
his criminal liability, as well as his civil liability ex delicto. Since the criminal action is
extinguished in as much as there is no longer a defendant to stand as the accused, the civil
action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal case. (See also People vs. Agacer, 68 SCRA 42, 7 January
2013.)

49.Q. What is the effect of the acquittal of the accused in a criminal case for
Estafa on the ground of reasonable doubt? Explain.

49.A. In Rimando vs. Aldaba (738 SCRA 232, 13 October 2014)(First Division)
[Perlas-Bernabe, J.], it was held that: The acquittal of the accused does not automatically
preclude a judgment against him on the civil aspect of the case. The extinction of the penal
action does not carry with it the extinction of the civil liability where:

(a) the acquittal is based on reasonable doubt as only preponderance of evidence

is required;

(b) the court declares that the liability of the accused is only civil; and

(c) the civil liability of the accused does not arise from or is not based upon the
crime of which the accused is acquitted.

However, the civil action based on delict may be deemed extinguished if there is a
finding on the final judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist or where the accused did not commit the acts or
omission imputed to him.133

CIVIL LIABILITY IN CRIMINAL CASES (ARTICLE 100)

50.Q. Is the acquittal of the accused in criminal case includes his exoneration
from civil liability?

50.A. No. In Daluraya vs. Oliva (744 SCRA 193, 8 December 2014)(First Division)
[Perlas-Bernabe, J.], the Supreme Court held that: The acquittal of an accused of the crime
charged, however, does not necessarily extinguish his civil liability.134 In Manantan vs.

128
See People vs. Culas, G.R. No. 211166 (5 June 2017).
129
G.R. No. 211166 (5 June 2017)[Perlas-Bernabe, J.].
130
G.R. No. 214875 (17 October 2016)[Perlas-Bernabe, J.].
131
717 SCRA 276 (24 February 2014).
132
704 SCRA 369 (28 August 2013).
133
Dayap vs. Sendiong, 597 Phil 127 (2009).
134
Lumantas vs. Calapiz, G.R. No. 163753 (15 January 2014).
 36

CA,135 the Court expounded on the two kinds of acquittal recognized by our law and their
concomitant effects on the civil liability of the accused, as follows:

Our law recognizes two kinds of acquittal, with different effects on the civil liability
of the accused.

First is an acquittal on the ground that the accused is not the author or the actor of
the omission complained of. This instance closes the door to civil liability, for a person who
has been found to be not the perpetrator of any act or omission cannot and can never be
held liable for such act or omission. There being no delict, civil liability ex delicto is out of
the question, and the civil action, if any, which may be instituted must be based on grounds
other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules
of Court.

The second instance is an acquittal based on reasonable doubt on the guilt of the
accused. In this case, even if the guilt of the accused has not been satisfactorily
established, he is not exempt from civil liability which may be proved by preponderance of
evidence only.

51.Q. Explain the concept that the institution of criminal case includes the civil
action for the recovery of civil liability arising from the offense chare.

51.A. Under Article 100 of the Revised Penal Code, every person criminally liable for
a felony is also civilly liable. Institution of a criminal case includes the civil action for the
recovery of the civil liability arising from the offense charged.136 The inclusion of the civil
action is to avoid multiplicity of suits. 137

While the criminal and civil actions can be litigated in the same proceedings, the
quanta of evidence for the two actions are not the same. For the court to find criminal liability
against the accused, there must be proof beyond reasonable doubt: 138

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind. 139

On the other hand, the finding of civil liability only requires preponderance of evidence
or superior weight of evidence on the issues involved. 140

The court may consider all the facts and circumstances of the case, the witnesses'
manner of testifying, their intelligence, their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon the trial. 141

Despite the singularity of the proceedings of both the criminal case and the civil case,
it is possible for there to be an acquittal on the criminal case and yet a finding of civil liability.
The respective weights of the evidence in the criminal and civil cases are evaluated
independently.142

-NOTHING FOLLOWS-

GOOD LUCK AND GOD BLESS.

MAY ALL OF YOU REACH THE UNREACHABLE STAR!!!

135
403 Phil. 299 (2001).
136
Sec. 1 (a), Rule 111, Rev. Rules of Court.
137
Ricarze vs. Court of Appeals, 544 Phil. 237 (2007)[Per J. Callejo, Third Division].
138
Sec. 2, Rule 133, Rev. Rules of Court.
139
Sec. 2, Rule 133, Rev. Rules of Court.
140
Sec. 1, Rule 133, Rev. Rules of Court.
141
Sec. 1, Rule 133, Rev. Rules of Court.
142
People vs. Wahiman, 758 SCRA 366 (16 June 2015)[Del Castillo, J.] (concurring opinion of Leonen, J.].