2022 PRE-DAY REVIEWER

WITH CASES PENNED BY J. CAQUIOA

BY JUDGE MARLO B. CAMPANILLA

Warning: This is the intellectual property of Judge Campanilla. Copying

any parts of this work in writing materials or book for publication without proper
attribution is prohibited by law.

1. If the psychological violence consisting of marital infidelity punishable

under RA No. 9262 is committed in Singapore but the psychological effect
occurred in the Philippines since the wife of the respondent, who suffered mental
anguish, is residing in the Philippines, our court can assume jurisdiction (see:
AAA vs. BBB, G.R. no. 212448, January 11, 2018).

2. Under the Convention on the Law of the Sea, the Philippines can
exercise jurisdiction over crime committed on board A foreign merchant ship
passing through the 12-mile territorial sea in the following cases: (1) if its
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consequences extend to the coastal State; (2) if it disturbs the peace of the
country or the good order of the territorial sea; or (4) if it is for the suppression
of traffic in narcotic drugs or psychotropic substances.

3. Under Article 14 of the Civil Code, penal laws shall be obligatory upon
all who live or sojourn in the Philippine territory. This is the generality principle.
Hence, a person regardless of his citizenship, religion, political position or any
other status can be criminally prosecuted and convicted as long as he is living
or sojourning in the territory of the Philippines.

4. Case law or jurisprudence recognizes presidential immunity. Because

of this immunity, penal laws are not obligatory to the President. The President
of the Philippines is entitled to immunity from suit subject to the following
conditions: (1) the immunity has been asserted; (2) during the period of his
incumbency and tenure; and (3) the act constituting the crime is committed in
the performance of his duties. Presidential immunity will assure the exercise of
presidential duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that demands undivided attention.
(Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001) There is no vice-
presidential immunity since he is not the Chief Executive, whose job damands
undivided attention.

5. If the offense punishable under special law is inherently evil, there are
two views on the standard in classifying a crime as malum in se or malum
prohibitum.

First view - The first view is that if the offense is punishable under a
special law, it will be treated as malum prohibitum. Thus, fencing (Estrella vs.
People, G.R. No. 212942, June 17, 2020), hazing (Estrella vs. People, G.R. No.
212942, June 17, 2020) and trafficking in person (People vs. Dela Cruz, G.R. No.
238754, June 16, 2021) are mala prohibita since they are punishable under
special criminal laws.

Second view - The second view is that although the offense is punishable
under special law, if the same is inherently evil it will be treated as malum in se.
Child pornography (Cadajas vs. People, G.R. No. 247348, June 15, 2022),
plunder (Napoles vs. Sandiganbayan, G.R. No. 224162, November 7, 2017) and
violence against women (Acharon vs. People, G.R. No. 224946, November 9,
2021) are mala in se although they are punishable under special laws since they
are inherently wrong.

Sexual abuse under Section 5 (b) of RA No. 7610 is considered by the

Supreme Court as malum prohibitum simply because it is punishable under a
special law. In sum, the first view was applied in this case. (Carbonell vs.
People, G.R. No. 246702, April 28, 2021) Child abuse under Section 10 of RA No.
7610 is considered by the Supreme Court as malum in se because is it inherently
wrong (Demata vs. People, G.R. No. 228583, September 15, 2021) In sum, the
second view was applied in this case.

6. If the crimes committed against the target victim and third person, who
was hit by reason of aberratio ictus, were produced by a single act, the accused
is liable for a complex crime. Thus, a single act of throwing a grenade or firing a
gun killing one and injuring another constitutes a complex crime of murder with
attempted murder. (People v. Julio Guillen, G.R. No. L-1477, January 18, 1950;
People vs. Bendecio, G.R. No. 235016, September 08, 2020) However, the
accused is liable for separate crimes despite the application of the aberratio ictus
rule, and not a complex crime in the following cases: (a) If the bullet that killed
the target victim is different from the bullet that killed the third person, who was
hit by reason of aberratio ictus (Cruz vs. People, G.R. No. 216642, September 8,
2020, Justice Caquioa); (b) If the crime committed against the third person, who
was hit by reason of aberratio ictus, is merely a light felony such as slight
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physical injuries (People v. Violin, G.R. Nos. 114003-06, January 14, 1997); (c)
If the crime committed against the third person, who was hit by reason of
aberratio ictus, is child abuse, which is an offense punishable under special law
(Patulot vs. People, G.R. No. 235071, January 7, 2019) Components of complex
crime must be felonies.

Accused consciously poured hot cooking oil from a casserole on CCC,

consequently injuring AAA (3 years old) and BBB (2 months old) burning their
skins and faces. Accused is liable for child abuse involving infliction of physical
injury although there is no intent to degrade, debase or demean the intrinsic
worth and dignity of AAA and BBB as human beings. In fact, the intention of the
accused is merely to inflict injury on CCC but because of aberratio ictus or
mistake of blow, AAA and BBB were also injured. In sum, because of Article 4 of
RPC, accused is liable for the wrongful act done (child abuse against AAA and
BBB) although it differs from the wrongful act intended (physical injuries on
CCC). This is not a complex crime. Accused is convicted of two counts of child
abuse. (See: Patulot vs. People, G.R. No. 235071, January 7, 2019) He should
also be held liable for physical injuries.

7. Stabbing a person without knowing that he is already dead is an

impossible crime. (Intod v. Court of Appeals, G.R. No. 103119, October 21, 1992)
However, if the accused, who stabbed the dead body of the victim, conspired with
the one who previously hacked and killed the victim, the former is liable for
murder and not an impossible crime because of the collective responsibility rule.
The liability of the accused for murder is not based on his act of stabbing the
dead body of the victim. His liability is based on the act of his co-conspirator in
hacking and killing the victim, which by the fiction of the law shall be treated as
the act of both of them. (People v. Callao, G.R. No. 228945, March 14, 2018,
Caguioa)

8. Mental retardation includes (a) idiot, whose mental age is 2 years old;
(b) imbecile, whose mental age is 7 years old; (c) moron or feebleminded, whose
mental age is 12 years old and (d) borderline intelligence. (People vs. Gilles, G.R.
No. 229860, March 21, 2018)

Having sexual intercourse with the offended party, who is under 16 years
of age, is statutory rape. The word “age” in this provision includes chronological
age and mental age. Hence, having sexual intercourse with idiot with the mental
age of 2 years, imbecile with a mental age of 7 years, or feebleminded or moron
with the mental age of 12 years, or a person with borderline intelligence with a
mental age of under 16 is statutory rape (People vs. Daniega, G.R. No. 212201,
June 28, 2017).

The term, "deprived of reason," is associated with insanity or madness. The

term "demented," refers to a person who suffers from a mental condition called
dementia. A mentally retarded person is not necessarily deprived of reason or
demented. In fact, a mentally retarded persons can be credible
witnesses. However, he is immature, and socially irresponsible and dependent
(People vs. Daniega, supra; People vs. Niebres, G.R. No. 230975, December 04,
2017) Thus, an offender, who committed sexual intercourse with a mentally
retarded person, must be prosecuted for statutory rape of a person under 16
years of mental age, and not rape against a person deprived of reason or
demented person. (People vs. XXX, G.R. No. 242684, February 17, 2021, Justice
Caquioa)

Under Section 5 (b) of RA No 7610 as amended by RA No. 10648, when

the child subjected to sexual abuse is under 16 years of age, the perpetrators
shall be prosecuted for rape and acts of lasciviousness under RPC. The word
“age” in the phrase “when the victim is under sixteen (16) years of age” in Section
5 (b) of RA No. 7610 is either chronological or mental. (People vs. Pusing, G.R.
No. 208009, July 11, 2016)
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 In exempting circumstance of imbecility, what is important is the mental
age of the accused. An idiot, whose mental age is 2 years, and an imbecile, whose
mental age is 7 years old (People vs. Butiong, G.R. No. 168932, October 19, 2011,
Bersamin) are exempt from criminal liability. A feebleminded, whose mental age
is 12 years old, is not exempt from criminal liability since he is not an imbecile
(People vs. Nunez, G.R. No. 112429-30, July 23, 1997) but he is entitled to
mitigating circumstance of mental illness (People vs. Formigones, G.R. No. L-
3246, November 29, 1950). In exempting circumstance of minority under Section
6 of RA No. 9344, what is important is the chronological or actual age of the
accused.

If the actual age of the accused is 18 years old and mental age is 9 years
old, the exempting circumstance of minority and imbecility shall not be
appreciated because he is neither a minor nor an imbecile (People vs. Roxas,
G.R. No. 200793, June 04, 2014).

9. Section 5 of PD 1612 states that mere possession of any object which

has been the subject of robbery or thievery shall be prima facie evidence of
fencing. However, this presumption was overcome by the accused upon
presentation of the notarized affidavits of the President and Chief Mechanic of
Bicycle Works that indeed, he bought the bicycle subject of the case from their
store. Without proof that the bicycle stolen from the complainant is the same
bicycle in the possession of the accused, the presumption under Section 5 of PD
1612 would not operate. (Lopez vs. People, G.R. No. 249196, April 28, 2021)

Actual knowledge that the property is stolen is not required. Fencing is

committed if the accused should have known that the property is stolen taken
into consideration the attending circumstances such as (1) the price of the
property is so cheap; (2) expensive jewelry is being offered for sale at midnight in
a street; (3) accused knew that the car he bought was not properly documented
(Dimat vs. People, supra); or (4) new tires are being peddled in the streets by an
unknown seller (Ong vs. People, supra). Furthermore, mere possession of stolen
property shall be prima facie evidence of fencing (Section 6 of PD No. 1612). In
sum, possession of stolen property gives rise to the presumption that the
possessor “knows or should have known” that the property is stolen.

The accused should have been forewarned that the soft drinks came from
an illegal source, as his transaction with the thief did not have any accompanying
delivery and official receipts, and that the latter did not demand that such items
be replaced with empty bottles, contrary to common practice among dealers of
soft drinks. He should have known that the goods are stolen. He was convicted
of fencing. (Cahulugan vs. People, G.R. No. 225695, March 21, 2018)

There is a second crime of fencing, and that is, selling or buying second-
hand goods without a permit. In Lim vs. People, G.R. No. 211977, October 12,
2016, the clearance stated in Section 6 of PD No. 1612 is only required if several
conditions, are met: first, that the person is in the business of buying and selling
of anything of value; second, that such thing of value was obtained from an
unlicensed dealer or supplier thereof; and third, that such thing of value is to be
offered for sale to the public. In the present case, the first and third requisites
were not met. Nowhere was it established that accused was engaged in the
business of buy and sell. Neither was the prosecution able to establish that
accused intended to sell or was actually selling the subject grader to the public.
The accused bought the property for his personal use.

10. If the offender dragged victim to place where there are no other persons
to witness the incident, the dragging which may constitute forcible abduction
will be considered as part of the commission of rape. Hence, doctrine of
absorption applies. Since forcible abduction is an indispensable means to
commit rape; hence, the latter absorbs the former. (People v. Almanzor, G.R. No.
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124916, July 11, 2002) However, if the victim was brought to a house or motel
or a place at a considerable distance from the place where she was abducted,
forcible abduction will be considered a necessary means to commit rape; hence,
the acts constitute a complex crime proper. (People v. Jose, G.R. No. L-28232,
February 6, 1971)

If the offender abducted the victim, touched her private parts, transported
her to hotel and raped her four times. Touching her private parts immediately
after the abduction is evidence of lewd design. Abduction with lewd design is
forcible abduction. Since forcible abduction is a necessary means to commit the
first rape, the two will be merged together to form a complex crime. The second,
third and fourth rape shall be treated as separate crimes. (People v. Jose, G.R.
No. L-28232, February 6, 1971)

If the offender abducted the victim, transported her to a house and raped
her four times. There is no showing that at the time of the abduction, the offender
is motivated by lewd design. Hence, the crime committed is kidnapping and not
forcible abduction. Since the victim was rape in the course of detention, this is
a special complex crime of kidnapping with rape. Regardless of the number of
rapes, this is a single indivisible crime of kidnapping with rapes. (People v.
Mirandilla, Jr., G.R. No. 186417, July 27, 2011)

11. A, B, C and D abducted X and her maids, Y and Z, in Quezon City and
brought them in a safehouse in Tagaytay. A raped X, B raped Y and C raped Z.
D demanded ransom from the parents of X. For failure to give the ransom, D
killed X, Y and Z. It is a basic rule that there are as many criminal impulses to
deprive liberty as there are persons whose liberties has been deprived of. Hence,
the kidnappers are liable for as many kidnappings and serious illegal detention
as there are persons detained. (People v. Pagalasan, G.R. Nos. 131926 and
138991, June 18, 2003) Since there are three victims in this case, A, B, C and
D are liable for two counts of kidnapping for ransom. Since X, Y and Z were killed
in the course their detention, three counts of special complex crime of
kidnapping with homicide are committed. The rapes committed by A, B and C
against X, Y and Z shall be integrated into the two special complex crime of
kidnapping with homicide, respectively. (People vs. Larranaga, 138874-75,
February 3, 2004)

A, B, C and D entered the house of X and took her money and jewelries.
They also took the money of Y and Z, the maids of X. Then, A raped X, B raped
Y and C raped Z. Later on, D killed X, Y and Z. Since there is a single criminal
impulse to rob the house of X, they committed a single crime of robbery although
there are three victims. Taking money from Y and Z is only a consequence of
their original and single impulse to commit robbery in the house of X, and
therefore cannot be taken as separate and distinct offenses. The crime of robbery
is a continuing crime (delito continuado), thus, although there is a series of acts,
there is but one crime committed. (People vs. Coritana, G.R. No. 209584, March
03, 2021) Since by reason or on occasion of robbery, X, Y and Z were killed, they
are liable for a special complex crime of robbery with homicide. In this special
complex crime, it is immaterial that several persons are killed. It is also
immaterial that aside from the homicides, rapes are committed by reason or on
the occasion of the robbery. Hence, rapes committed against X, Y and Z in the
course of robbery shall be integrated into one and indivisible felony
of robbery with homicide. (People vs. Daguman, G.R. No. 219116, August 26,
2020)

12. In robbery with homicide, the victim of the robbery need not be the
victim of the homicide, (People vs. Daguman, G.R. No. 219116, August 26, 2020)
and it is immaterial that the victim of homicide is a bystander (People vs. Barut,
G.R. No. L-42666 March 13, 1979), a responding policeman (People vs. Pelagio,
G.R. No. L-16177, May 24, 1967) or one of the robbers. (People vs. Casabuena,
G.R. No. 246580, June 23, 2020)
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 13. Case law establishes that whenever homicide or rape has been
committed by reason of or on the occasion of the robbery, all those who took part
as principals in the robbery will also be held guilty as principals of robbery with
homicide or rape although they did not take part in the homicide or rape, unless
it appears that they sought to prevent the killing or rape. (People vs. Casabuena,
G.R. No. 246580, June 23, 2020; People vs. Coritana, G.R. No. 209584, March
03, 2021)

However, in fine, the long line of jurisprudence on the special complex

crime of robbery with rape requires that the accused be aware of the sexual act
in order for him to have the opportunity to attempt to prevent the same, without
which he cannot be faulted for his inaction. (People vs. Agaton, G.R. No. 251631,
August 27, 2020) If there is no evidence that the accused is aware of the
commission of rape, he could not have prevented the rape. Hence, the accused
is only liable for robbery and not robbery with rape. (People v. Canturia, G.R. No.
108490, June 22, 1995)

Canturia principle where lack of awareness is a defense is applicable to

kidnapping with rape (People v. Anticamaray, G.R. No. 178771, June 8, 2011),
kidnapping with homicide, robbery with homicide (People v. Corbes, G.R. No.
113470, March 26, 1997) and robbery with arson.

Canturia principle is not applicable to robbery with homicide. Even though

the accused was not aware of the killing by his co-robber and had no the
opportunity to attempt to prevent the same, he is still liable for special complex
crime of robbery with homicide since the killing of the victim is an inherent
consequence of the violence which is an element of robbery.

14. At the time Congress was crafting the provision on robbery with rape,
its members were thinking of rape under Article 335 of RPC, which is committed
through sexual intercourse. There is no crime of sexual assault in 1993 when its
members were making the special complex crime of robbery with rape a heinous
crime. Hence, the crime of sexual assault is not within the contemplation of the
word “rape” as a component special complex crime of robbery with rape under
Article 294. If by reason or on occasion of robbery, sexual assault is committed,
the offender is liable for separate crimes of robbery and sexual assault. (See:
People vs. Barrera, G.R. No. 230549, December 01, 2020)

15. If the victim dies or is killed as a consequence of detention, the offender

is liable for special complex crime of kidnapping with homicide. If the victim dies
or is killed in the course of arbitrary detention, the offender is not liable for
special complex crime. Neither is he liable for complex crime. These two crimes
were not produced by a single act. Arbitrary detention was not used as a
necessary means to commit murder. Hence, the offenders are liable for separate
crimes of murder and arbitrary detention even if they were indicted of a complex
crime in the Information. It was improper for the prosecutor to have charged
them of a complex crime as the offenses were separate and distinct from each
other and cannot be complexed. (People vs. Dongail, G.R. No. 217972, February
17, 2020)

16. If the robbers held hostages the victims to prevent the policemen form
arresting them, the crime committed is robbery, which absorbs illegal detention.
Since the principal intention of the accused is to rob the victims, and the
deprivation of their liberty is just incidental to the prevention of the responding
police officers from arresting them, the crime committed is robbery, which
absorbed incidental kidnapping and serious illegal detention. (People v. Astor,
G.R. Nos. L-71765-66, April 29, 1987)

If the rapist held hostage the victim to prevent the policemen from
arresting him, the crimes committed are rape and serious illegal detention. Since
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the detention continued after the rape had been completed, it cannot be deemed
a necessary means for the crime of rape. Hence, the crimes shall be considered
as separate. (People vs. Concepcion, G.R. No. 214886, April 04, 2018)

17. Article 64 (5) on special mitigating circumstance that requires the

graduation of penalty is only applicable if the penalty contains three periods.
Reclusion perpetua to death prescribed for parricide is not a penalty containing
three periods. The applicable provision is Article 63 par. 2 (3) on the rule
involving a penalty composed of two indivisible penalties. Hence, the lesser
penalty shall be applied. Reclusion perpetua is lesser than death. Hence, the
accused shall be sentenced to suffer reclusion perpetua. (People vs. Padilla, G.R.
No. 247603, May 05, 2021)

18. In 2019 the DOJ issued new implementing rules of RA No. 10592
under which detention prisoner charged with heinous crime or convicted
prisoner, who is convicted of heinous crimes, are not entitled to GCTA, special
time allowance for loyalty, and time allowance for study, teaching, and mentoring
under Articles 97 and 98 of the Codes. The Supreme Court in Miguel vs. Director
of Bureau Prisons, UDK-15368, September 15, 2021, recognizes the validity of
the DOJ implementing rules (2019 Revised IRR). It was held that the GCTA Law
and 2019 Revised IRR have made abundantly clear that persons charged with
and/or convicted of heinous crimes are not entitled to the benefits under the
law.

19. Within 15 days from promulgation of judgement of conviction, the

accused had the following remedies: (a) If the penalty imposed exceeds six (6)
years of imprisonments, the accused can file an appeal or motion for
reconsideration. (b) If the penalty imposed exceeds six (6) months of
imprisonment but not exceeding 6 years, the accused can file an appeal or apply
for probation. (c) If the penalty imposed arresto menor or arrestor mayor (not
exceeding 6 months), the accused can file an appeal, or apply for probation or
community service.

These remedies of appeal, probation and community service are mutually

exclusive. In sum, filing an appeal will exclude applying for probation or
community service as a remedy; applying for probation will exclude filing an
appeal or applying for community service as a remedy; and applying for
community service will exclude filing an appeal or application for probation as a
remedy. However, under A.M. No. 20-06-14-SC, in the event that the court
denies the application for community service and the period to appeal has not
yet lapsed, the accused may still choose to appeal or apply for probation.
Moreover, the accused can withdraw the application for probation and file an
appeal provided that both the withdrawal and appeal are made within the period
of perfecting an appeal. (Yusi v. Morales, G.R. No. 61958, April 28, 1983;

The accused was convicted of malversation and sentenced to suffer a

penalty of 11 years of prision mayor, which is non-probationable. The judgment
becomes final prior to the effectivity of RA No. 10951, which generally reduced
the penalty for malversation. Despite the immutability of a final judgment, the
Supreme Court reduced the penalty to 3 years of prision correccional in
accordance with RA No. 10951, which penalty is now probationable. Since the
judgment of conviction imposing a non-probationable penalty is modified
through the imposition of a probationable penalty, she is now allowed to apply
for probation based on the modified decision before such decision becomes final.
(Hernan vs. Honorable Sandiganbayan, G.R. No. 217874, December 5, 2017;
Aguinaldo vs. People, G.R. No. 226615, January 13, 2021)

The accused can apply that the penalty be served by rendering community
service. If the accused is sentenced with a penalty higher than arresto menor or

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arresto mayor, and on appeal the penalty was lowered to arresto menor or arresto
mayor, which became final and executory, the accused may, upon written
application with the court of origin, seek community service in lieu of
imprisonment (A.M. No. 20-06-14-SC, October 6, 2020)
Under PD No. 968, The benefits of probation law shall not be extended to
those who have been once on probation. Under Article 88-A of RPC, the privilege
of rendering community service in lieu of service in jail shall availed of only once.
Under A.M. No. 20-06-14-SC, October 6, 2020, an accused who has applied and
was granted probation in a previous case is not disqualified to apply for
community service in a subsequent case. Under PD No. 968, the benefits of
probation law shall not be extended to those who have been previously convicted
by final judgment of an offense punished by imprisonment of more than six
months and one day. Availing community service in a previous case means that
the penalty imposed in that case is not higher than arresto menor or arrestor
mayor. Since the penalty in his previous case does not exceed 6 months, he can
apply for probation in his present case.
Accused is charged of sale of dangerous drugs. Pursuant to a plea-
bargaining agreement, he pleaded guilty to the lesser offense of possession of
drug paraphernalia, which is punishable 6 months and 1 day to 4 years. Sale of
dangerous drugs is not probationable. However, in applying for probation, what
is essential is not the offense charged but the offense to which the accused is
ultimately found guilty of. In sum, in determining the eligibility of the accused
for probation, the court shall consider possession of drug paraphernalia for
which he pleaded guilty, and not sale of dangerous drugs with which he is
charged. Possession of drug paraphernalia is probationable since the penalty
prescribed for it does not exceed 6 years of imprisonment. Under Section 24 of
RA No. 9165, any person convicted for drug trafficking or pushing cannot avail
of the privilege granted by the Probation Law. However, possession of drug
paraphernalia is not considered as drug trafficking or pushing. Hence, the
accused is eligible to apply for probation. (Pascua vs. People, G.R. No. 250578,
September 07, 2020)

20. Re-election to public office or condonation of a re-elected public officer

is not a defense in a criminal case. (Oliveros v. Judge Villaluz, G.R. No. L-34636,
May 30, 1974) Under the old rule, the reelection to public office or condonation
of a re-elected public officer was a defense in an administrative case. (Aguinaldo
v. Santos, G.R. No. 94115, August 21, 1992) But doctrine of administrative
condonation has been abandoned because it is inconsistent with the concept of
public office is a public trust (Morales v. CA and Binay, G.R. Nos. 217126-27,
November 10, 2015) However, the Morales principle shall be given a prospective
effect (Ombudsman v. Mayor Vergara, G.R. No. 216871, December 6, 2017) The
abandonment of the doctrine of condonation took effect on April 12, 2016, when
the Supreme Court denied with finality the OMB's Motion for Reconsideration
in Morales case. (Crebello v. Office of the Ombudsman, G.R. No. 232325, April 10,
2019) Thus, the re-elected public officer can still use the condonation as a
defense subject to two conditions: (1) the administrative complaint is filed before
April 12, 2016; and (2) the respondent was re-elected before April 12, 2016.
(Office of the Ombudsman vs. Malapitan, G.R. No. 229811, April 28, 2021)

21. Novation is not a mode of extinguishing criminal liability under Article

89 of the Revised Penal Code. (People v. Nery, G.R. No. L-19567, February 5, 1964)
Criminal liability for estafa is not affected by a compromise or novation of
contract. (Metropolitan Bank and Trust Company v. Reynando, G.R. No. 164538,
August 9, 2010; 1984 Bar Exam) Hence, as a general rule, novation is not a
defense in a criminal case.

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 However, a novation can extinguish the old contract, which may be the
basis of criminal liability. In such a case, novation is a defense. In estafa through
misappropriation, “receiving the property in trust” is an element thereof. In sum,
a contract of trust is an ingredient of this crime. Novation may convert the
contract of trust into a loan contract, or create doubt on the original transaction’s
true nature. (People v. Nery, supra) In these situations, the accused will be
acquitted for failure to prove the element of “receipt of property in trust.” Thus,
novation is a defense in estafa through misappropriation where the contract of
agency is converted into a sale. (Degaños v. People, G.R. No. 162826, October 14,
2013; 1988 Bar Exam)

Moreover, “receiving the property under an obligation involving the duty to

deliver, or to return” is an element of estafa through misappropriation. Novation
may convert a contract where the accused has the duty to return property into
a new contract where the accused has no such duty. Hence, estafa through
misappropriation is not committed. In Sorongon vs. People, G.R. No. 230669,
June 16, 2021, Justice Caquioa, there is no longer any duty or obligation on the
part of the accused to deliver or return the cement mixer to the private
complainant or to any other person for that matter because the ownership
thereof had already been transferred to the accused by the private complainant's
waiver and renunciation in his favor. The accused was acquitted of the charge of
estafa through misappropriation.

Novation can only be used as a defense in a crime where one of its elements
is the existence of a contractual relationship between the offender and the victim.
Novation is a defense in estafa through misappropriation since the juridical
possession of the property by the offender, which is a requisite to this crime, may
be based on contract. Novation cannot be used as a defense in case of theft or
estafa through false pretense since contract is not an element of this crime. There
is nothing to novate. (People v. Tanjutco, G.R. No. L-23924, April 29, 1968) (Milla
v. People, G.R. No. 188726, January 25, 2012)

Novation may be express or implied. There is express novation when

novation has been explicitly stated and declared in unequivocal terms. There is
implied novation when the old and the new obligations are incompatible on every
point. Partial payment and promise to pay the balance of obligation under a
contract of agency will not convert it into a sale. There is no novation since the
obligation of the accused in making a partial payment is not incompatible with
the obligation to give the proceeds of the sale of the property under the contract
of agency. (Degaños v. People, supra;)

In commodatum, ownership of the thing loaned does not pass to the

borrower. In the settlement between the private complainant and the accused
before the barangay proceedings, the former waived her ownership over the
cement mixer in favor of the latter in exchange for the concession that he would
refrain from filing any case against her in the future. The obligation of the
accused (returning the property) under the old contract of commodatum is not
compatible with his obligation (refraining from failing a case) under the amicable
settlement. Novation had effectively occurred. Being the owner of the cement
mixer, the accused has no obligation to return the same to the private
complainant. (Sorongon vs. People, Justice Caquioa)

22. Generally, the prescriptive period shall commence to run on the day
when the crime is committed. An exception to this rule is the "blameless
ignorance" doctrine, under which prescription runs only upon discovery of the
crime by offended party or State through a person in authority or his agent. In
other words, the courts would decline to apply the statute of limitations where
the state through person in authority or its agent, and private complainant does
not know, or has no reasonable means of knowing the existence of a crime. In
sum, the State and complainant should not be blame for failure to institute the
9|Page
case immediately after the commission of the crime if he is ignorant of such
commission.

23. The 10-year prescriptive period for falsification of document shall

commence to run on the date of recording of the falsified deed of sale in the
Registry of Deeds because of the constructive notice rule under the Torren
system. In sum, the complainant constructively discovered the crime on the date
of registration. (Lim vs. People, G.R. No. 226590, April 23, 2018) The 15-year
prescriptive period for bigamy shall commence to run on the date of actual
discovery of the bigamous marriage and not from the registration of bigamous
marriage in the Office of the Civil Registrar. The law on Civil Registry and the
Family Code, which governed registration of marriage, do not provide a rule on
constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14,
1994).

24. Under Act 3326, prescription for an offense punishable under special
laws begins to run from the date of the commission of the offense, if the date of
the commission of the crime is known, or from the date of discovery thereof if it
unknown. This is the blameless ignorance doctrine.
A municipal mayor, with evident bad faith and manifest partiality gave a
company unwarranted benefit, advantage or preference by awarding a contract
for the solid waste management program of the municipality without a public
bidding and without recommendation by the bids and awards committee and
despite the fact that the paid- up capital of the company is only PhP7,000.00.
The 20-year prescriptive period begins to run upon the execution of the contract,
which is the date of the alleged violation of Section 3(e) of R.A. No. 3019. Under
the Local Government Code, contracts entered by the mayor are required to be
posted at a conspicuous place in the municipal hall. Moreover, the documents
involving the procurement of the services are available to the public. The
transparency regarding the said anomalous transaction provides the State with
reasonable means of knowing the existence of the crime. The State is presumed
to know that the crime has been committed. (See: Perez vs. Sandiganbayan, G.R.
No. 245862. November 3, 2020, Justice Caquioa) If the mayor in conspiracy
with other public officers concealed the contract and related documents to the
public, the 20-year prescriptive shall commence to run from discovery of the
crime by person in authority or his agent. The concealment would make it
impossible for the State to discover the anomalies in the contract. If the
necessary information, data, or records based on which the crime could be
discovered is not readily available to the public, there is no way for the State to
know that the crime has been committed.

Under the law, SALNs are accessible to the public for copying or inspection
at reasonable hours. Under the circumstances, the State is to be presumed to
know of her omissions during the eight-year period of prescription set in Act No.
3326. Hence, the general rule applies; prescription begins to run from the date
the accused failed to file SALN. (People vs. Parba-Rural, G.R. No. 231884, June
27, 2018)

Considering that during the Marcos regime, no person would have dared
to assail the legality of the transactions involving cronies (such as behest loans
or transactions involving the construction of nuclear power plant, it would be
unreasonable to expect that the discovery of the unlawful transactions was
possible prior to 1986. (Disini v. Sandiganbayan, G.R. Nos. 169823-24 and
174764-65, September 11, 2013) Hence, the prescriptive period for violation of
R.A. No. 3019 commenced from the date of its discovery in 1992 after the

10 | P a g e
Committee made an exhaustive investigation. (Presidential Ad hoc Fact-finding
Committee v. Hon. Desierto, G.R. No. 135715, April 13, 2011)

25. The filing of complaint involving violation of ordinance with the

prosecutor’s office does not interrupt the running of period of prescription. The
proceedings mentioned in Act No. 3326 are “judicial proceedings.” Preliminary
investigation, which is not a judicial proceeding contemplated in Act 3326, will
cause a prescriptive interruption. (Zaldivia v. Reyes, Jr., G.R. No. 102342, July
3, 1992) The provision in the Rules on Criminal Procedure regarding the
interruption of prescription by institution of criminal action is not applicable to
violation of ordinance because case involving this crime is covered by the Rules
on Summary Procedure. (Jadewell Parking Systems Corp. vs. Lidua, Sr., G.R.
No. 169588, October 7, 2013)

The filing of complaint involving violation of BP Blg. 22 with the

prosecutor’s office interrupts the running of period of prescription. Under Act
No. 3326, the running of the prescription of offense punishable under special
law shall be interrupted when “judicial proceedings for investigation and
punishment” are instituted against the guilty person. The term “proceedings”
should now be understood either as executive or judicial in character: executive
when it involves the investigation phase and judicial when it refers to the trial
and judgment stage. Hence, institution of proceeding, whether executive or
judicial, interrupts the running of prescriptive period. (Panaguiton v. Department
of Justice, G.R. No. 167571, November 25, 2008, People v. Pangilinan, G.R. No.
152662, June 13, 2012)

The Jadewell case is not compatible with Panaguiton case. However, for
purpose of the bar exam, the Jadewell principle should be applied if the case
involved violation of ordinance. Jadewell should not be applied to offenses under
special laws even they are covered by the rules on summary procedure. (People
vs. Lee, G.R. No. 234618, September 16, 2019)

The filing of complaint involving simple oral defamation with the

prosecutor’s office interrupts the running of period of prescription. Article 91 of
the Revised Penal Code provides “the period of prescription shall be interrupted
by the filing of the complaint or information.” The filling of compliant for
preliminary investigation if the fiscal’s office interrupts the running of
prescription of simple slander because Article 91 does not distinguish whether
the complaint is filed in the Office of the Prosecutor for preliminary investigation
or in court for action on the merits. (Francisco vs. CA, G.R. No. L-45674, May
30, 1983)

Jadewell case cannot be applied to prescription of felonies although they

are covered by the Rules on Summary Procedure. Jadewell is interpreting Act
No. 3326, while Francisco is interpreting Article 91 of the Revised Penal Code.

The filing of complaint for violation of R.A. No. 3019 with the Ombudsman
for preliminary investigation shall interrupt the running of the 20-year
prescriptive period (Perez vs. Sandiganbayan, G.R. No. 245862. November 3,
2020, Justice Caquioa)

26. Simple assault (e.g., punching) upon an agent of a person in authority

(e.g., police officer) while engaged in the performance of duty constitutes simple
resistance and not direct assault because there is no intent to defy the law and
its representative at all hazard, which is an element thereof (U.S. vs. Tabiana,
G.R. No. 11847, February 1, 1918). But serious assault upon agent of a person
in authority while engaged in the performance of duty constitutes direct assault
(U.S. vs. Cox, G.R. No. 1406, January 6, 1904; U.S. vs. Samonte, G.R. No. 5649,
September 6, 1910).

11 | P a g e
 Simple assault (e.g., punching) upon a person in authority (e.g., mayor or
chief of police) while engaged in the performance of duty constitutes qualified
direct assault. The law does not distinguish between serious and simple “laying
of hands” upon a person in authority as a qualifying circumstance. Hence, a
simple laying of hands upon a person in authority constitutes qualified direct
assault. The Tabiana principle is only applicable if the victim is an agent of a
person in authority (U.S. vs. Gumban, G.R. No. 13658, November 9, 1918).

If the person in authority or his agent is engaged in the actual performance

of duties at the time of the assault, the motive for the assault is immaterial.
Direct assault is committed even if the motive (such as non-payment of loan) was
totally foreign to victim’s official function (Sarcepuedes vs. People, G.R. No. L-
3857, October 22, 1951). If the person in authority or his agent is not engaged
in the actual performance of duties at the time of the assault, the motive for the
assault is material. To constitute direct assault, the offender must have
assaulted the victim by reason of his past performance of duty as a person in
authority or as an agent. (People vs. Renegado, G.R. No. L-27031, May 31, 1974)

Assaulting a mayor while performing his duty in city hall by reason of non-
payment of loan is direct assault. Assaulting a mayor on vacation by reason of
approving an ordinance is direct assault. Assaulting a mayor on vacation by
reason of non-payment of loan is physical injuries with aggravating circumstance
of disregard of rank.

Attacking a judge on the street by reason of past performance of duty (such

as citing the accused in contempt) constitutes qualified direct assault (U.S. vs.
vs. Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired judge by
reason of past performance of duty is not direct assault since he is not a person
in authority at the time of the assault. Note: The mandatory retirement age of a
judge is 70 years.

Attacking a third person (student) who comes to the aid of a person in

authority (teacher), who is a victim of direct assault (slapped by another student),
is liable for direct assault upon an agent of a person in authority. Attacking a third
person who comes to the aid of an agent of person in authority (police officer),
who is a victim of direct assault (seriously assaulted), is liable for indirect direct
assault. Attacking a third person who comes to the aid of an agent of person in
authority (police officer), who is a victim of simple resistance (punched once), is
liable for physical injuries.

Single act of stabbing the mayor while in the performance of his duty or
by reason of past performance of duty constitute complex crime of direct assault
and homicide. (People vs. Bautista, G.R. No. 247961, June 16, 2021) There is
also a complex crime of direct assault with attempted homicide or less serious
physical injuries. However, single act of punching the mayor while in the
performance of his duty or by reason of past performance of duty constitutes
direct assault and slight physical injuries. Under Article 48 of RPC, single act
constituting a two or more grave or less grave felony is a complex crime. Hence,
this is not a complex crime since slight physical injuries is a light felony. Direct
assault will absorb slight physical injuries since the latter is inherent in the
former.

27. Serious physical injuries contemplate physical deformity or the loss of

a body part resulting in the alteration of one's physical appearance. The loss of
a tooth, may, in most cases, be later repaired or replaced with an artificial tooth
by a competent dentist. Thus, for the loss of a tooth to be considered within the
scope of serious physical injuries, the circumstances surrounding its loss and
whether it caused a physical deformity or permanent alteration of one's physical
appearance must be examined on a case-to-case basis. (Ruego vs. People, G.R.
No. 226745, May 03, 2021) There may be cases where the loss of teeth would
12 | P a g e
cause a physical deformity that can no longer be remedied by science. Hence,
the crime committed is serious physical injuries. (Ruego vs. People, supra)
During the trial, the complainant was asked to show to the trial court his tooth,
to which the trial court noted that it was already an artificial tooth. The
complainant’s face had no visible disfigurement that would warrant accused’s
conviction of serious physical injuries. He was convicted of slight physical
injuries. (Ruego vs. People, supra)

28. There are two kinds of rape: (1) rape through sexual intercourse; and
(2) rape through sexual assault. However, the Supreme Court in People vs.
Tulugan, G.R. No. 227363, March 12, 2019 said that rape through sexual
intercourse should be called as “rape” while rape through sexual assault should
be called “sexual assault.”

There are three kinds of sexual assault, to wit: (1) instrument or object
sexual assault, which is committed by inserting an instrument or object (e.g.,
finger or tongue) into the genital or anal orifice of another person; (2) sexual
assault through oral intercourse, which is committed by inserting his penis into
another person’s mouth; and (3) sexual assault through sodomy, which is
committed by inserting his penis into another person’s anal orifice. In sexual
assault, the gender of the offender and the victim is not material.

If the accused commits rape and acts of lasciviousness, the latter is

absorbed by the former (People vs. Dy, G.R. Nos. 115236-37, January 29, 2002).
But the doctrine of absorption is not applicable to rape and sexual assault.
Inserting the penis into the mouth of the victim and into her genital orifice
constitutes separate crimes of sexual assault and rape (People vs. Dereco, G.R.
No. 243625, December 2, 2020)

Husband can be held liable for marital rape. Article 266-A of RPC uses the
term “man” in defining rape without regard to the rapist’s legal relationship with
his victim. Under Article 266-C of RPC, in case it is the legal husband who is the
offender, the subsequent forgiveness by the wife as the offended party shall
extinguish the criminal action. RA No. 8353 has eradicated the archaic notion
that marital rape cannot exist because a husband has absolute proprietary
rights over his wife’s body and thus her consent to every act of sexual intimacy
with him is always obligatory or at least, presumed (People vs. Jumawan, G.R.
No. 187495, April 21, 2014).

If the crime charged is rape, but the crime proven is acts of lasciviousness,
the accused will be convicted of the latter because of the variance rule. Acts of
lasciviousness is a lesser crime, which is necessarily included in the charge of
rape. If the crime charged is rape, but the crime proven is sexual assault, the
accused cannot be convicted of the latter. The variance rule is not applicable
since sexual assault is not necessarily included in the charge of rape. The
elements of these two crimes are materially and substantially different. (People
vs. Dereco, G.R. No. 243625, December 02, 2020) In such case, the accused will
be convicted of acts of lasciviousness (People vs. Caoili, G.R. No. 196342, August
08, 2017); or acts of lasciviousness under RPC in relation to RA No. 7610 (People
vs. Dagsa, G.R. No. 219889, January 29, 2018); or lascivious conduct under RA
No. 7610 (People vs. ZZZ, G.R. No. 224584, September 04, 2019). Acts of
lasciviousness or lascivious conduct is necessarily included in the charge of rape.

If the crime charged is acts of lasciviousness, but the crime proven is

sexual assault, he will be convicted of the lesser crime of acts of lasciviousness.
Sexual assault is a crime undoubtedly greater than acts of lasciviousness. While
it is true that the crime of acts of lasciviousness is necessarily included in the
crime of sexual assault, the crime of sexual assault however is not subsumed in
the crime of acts of lasciviousness. (People vs. Jagdon, Jr., G.R. No. 242882,
September 09, 2020)

13 | P a g e
 29. Failure to judicially charge within the prescribed period renders the
public officer effecting the arrest liable for the crime of delay in the delivery of
detained persons under Article 125 of the Revised Penal Code. If the warrantless
arrest was without any legal ground, the arresting officers become liable
for arbitrary detention under Article 124. However, if the arresting officers are not
among those whose official duty gives them the authority to arrest, they become
liable for illegal detention under Article 267 or 268. If the arrest is for the purpose
of delivering the person arrested to the proper authorities, but it is done without
any reasonable ground or any of the circumstances for a valid warrantless arrest,
the arresting persons become liable for unlawful arrest under Article 269.
(Duropan vs. People, G.R. No. 230825, June 10, 2020)

Arbitrary detention is committed by a public officer, who has the authority

to arrest and detain a person. Thus, a police officer, judge or mayor can commit
arbitrary detention. On the other hand, illegal detention such as unlawful arrets
is committed by private individual. Stenographer, who has no authority to arrest
or detain a person, cannot be held liable for arbitrary detention. A barangay
kagawad and barangay tanod are public officers; but they have no authority to
arrest. If they lawfully arrested a criminal suspect, this is citizen arrest. If they
arrested a person without lawful cause, this is unlawful arrest. Arbitrary
detention is not committed since arresting criminals are not part of their
functions (Duropan vs. People, G.R. No. 230825, June 10, 2020)

Arbitrary detention is committed by a public officer in pursuit of his duty

to arrest. The element of “in pursuit of his duty to arrest” in arbitrary detention
is present if the purpose of the arrest is: (1) To deliver the suspect to judicial
authority (U.S. v. Gellada, G.R. No. L-5151, January 31, 1910); (2) To conduct
criminal investigation (U.S. v. Agravante, G.R. No. 3947, January 28, 1908); or
(3) To determine if the victim committed a crime. (U.S. v. Hawchaw, G.R. No.
L-6909, February 20, 1912)

A police officers, who detained a suspected drug trafficker and demanded

ransom payment, committed the criminal act in their private capacity. (People v.
Gonzalez, Jr., G.R. No. 192233, February 17, 2016) Detaining any private person
for the purpose of extorting any amount of money could not, in any way, be
construed as within their official functions of police officers. Their badges or
shields do not give them immunity for any criminal act. (People vs. Popionco,
G.R. No. 200512, June 07, 2017) Hence, they are liable for kidnapping for
ransom and not arbitrary detention. Even the subsequent prosecution of the
kidnapped victim for sale of dangerous drugs does not negate the criminal
liability of the accused for the crime the latter committed against the former.
(People vs. Borja, G.R. No. 199710, August 02, 2017)

Taking the prisoner to a secluded place for purposes of detaining and

maltreating him constitutes kidnapping and serious illegal detention qualified
by the circumstance of serious physical injuries. Arbitrary detention is not
committed since the accused did not commit the act in furtherance of official
function or in the pursuit of authority vested in them. In sum, they committed
the act in their purely private capacity. (People v. Santiano, G.R. No. 123979,
December 3, 1998)

A soldier, who abducted a UP student and detained her at military camps,

barangay hall and a resort or safehouse, can be charged with kidnapping and
serious illegal detention. The civil court and not military court has jurisdiction
over the case since this crime is not service connected. Kidnapping should never
be part of the functions of a soldier. It cannot be done in a soldier's official
capacity. (Osorio v. Navera, G.R. No. 223272, February 26, 2018)

30. When falsification of public, official or commercial document is a

necessary means to commit malversation (People vs. Barbas, G.R. No. L-41265,
14 | P a g e
July 27, 1934), estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23,
1995) or theft (People vs. Salonga, G.R. No. 131131, June 21, 2001), offender is
liable for a complex crime under Article 48 of RPC.

When falsification of public, official or commercial document is not a

necessary means to commit other crimes, this is not a complex crime. Thus,
when falsification of public, official or commercial document is a merely a means
to conceal malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54, January
20, 1978; People vs. Villanueva, G.R. No. 39047, October 31, 1933), estafa
(People vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito,
G.R. No. 36979, November 23, 1932) or theft, the crimes are separate.

Complex crime of estafa through falsification of document is committed if

the offender needed to falsify the document in order to use the falsified document
in obtaining money or property from the complainant. If the offender, who needs
to falsify the document to commit estafa, is an accountable officer (tax collector),
this is complex crime of malversation through falsification of public document.
If the offender, who needs to falsify the document to commit estafa, is a non-
accountable public officer (payroll officer), this is complex crime of estafa through
falsification of public document.

Falsification and estafa, malversation or theft are separate crimes if the

offender is in possession of the property or money of the complainant, and thus,
he can misappropriate, malverse or steal it without the necessity of falsifying
document. In this situation, he merely falsifies the document to conceal estafa,
malversation or theft.

Under the common element doctrine, the use of damage as an element of

falsification of private document precludes the re-use thereof to complete the
elements of estafa, and vice versa. Damage is an element of estafa; damage is
also an element of falsification of private document; hence, the common element
principle is applicable since damage is a common element of both crimes.
Damage is an element of estafa; however, damage is not an element of
falsification of public, official or commercial document; hence, the common
element principle is not applicable since damage is not a common element of
both crimes. Damage is an element of falsification of private document; however,
damage is not an element of malversation; hence, the common element principle
is not appliable since damage is not a common element of both crimes. In sum,
common element doctrine is only applicable if the crimes committed are
falsification of private document and estafa.

If the common element principle is applicable, the accused is liable for

falsification of private document or estafa. When falsification of private document
is a necessary means to commit estafa, the crime committed is falsification.
When falsification of private document is not a means to commit estafa, the crime
committed is estafa. (People vs. Co, G.R. No. 233015, October 16, 2019)

If the falsification of a private document (demand letter, letter of

guarantee, payroll of private company or billing statement) is committed as a
means to commit estafa, the crime committed is falsification only. Under the
common element doctrine, the use of damage as an element in falsification of
private document precludes the re-use thereof to complete the elements of estafa.
Hence, estafa is not committed because the element of damage is not present.
There is no complex crime of estafa through falsification of private document.
(Batulanon vs. People, G.R. No. 139857, September 15, 2006; U.S. vs Chan Tiao,
G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516, November
10, 1931; People vs. Co, G.R. No. 233015, October 16, 2019)

If a person commits falsification of private document (e.g., unofficial

receipt) to conceal estafa, the crime is estafa only. Under the common element
doctrine, the use of damage as an element in estafa precludes the re-use thereof
15 | P a g e
to complete the elements of falsification. Hence, estafa is not committed because
the element of damage is not present (See: People vs. Beng, 40 O.G. 1913).

The crime of use of falsified document, the person who used the forged
document is different from the one who falsified it. If the one who used the
falsified document is the same person who falsified it, the crime is only
falsification and the use of the same is not a separate crime. Falsification of a
public document and use of false document by the same person who falsified it
constitute but a single crime of falsification. (Jayme vs. People, G.R. No. 248827,
August 27, 2020)

31. Culpable malversation and technical malversation -Approving a

voucher and signing a check without appropriation law will make the approving
public officer liable for technical malversation under Article 220 of RPC. However,
approving a voucher and signing a check without appropriation law, without
funding, and in violation of law prohibiting such payment will make the
approving officer liable for the graver crime of culpable malversation under
Article 217. Culpable malversation is committed by a public officer, who
knowingly allows another or others to make use of or misappropriate public
funds or property through abandonment or negligence. (Sarion vs. People, G.R.
Nos. 243029-30, March 18, 2021)

32. A and B are husband and wife. B is having a love affair with C. One
evening, A returning home sees C jump from the bedroom of their house. In the
bedroom, A sees B lying in bed. A gets his bolo and kills B. This is not death
under exceptional circumstance since A did not surprise his wife in the act of
infidelity. (People v. Marquez, G.R. No. 31268, July 31, 1929

A married woman and her paramour videoed themselves while they are
having sexual intercourse. After a month, the husband saw the sex video of his
wife with her paramour. Out of extreme jealousy, the husband immediately killed
his wife. This is not parricide under exceptional circumstance since the husband
did not surprise his wife in the very act of sexual intercourse with her paramour.
However, the commission of parricide is attended by the ordinary mitigating
circumstance of passion.
R.A. No. 8353, the Anti-Rape Law, recognizes the distinction between sexual
intercourse, and fingering, cunnilingus or sodomy. Under this law, fingering,
cunnilingus, or sodomy of a victim through force constitutes sexual assault, and
not rape. Fingering, cunnilingus, or sodomy is not also within the contemplation
of the term “sexual intercourse,” which is an element of adultery, concubinage,
or seduction. By the same token, fingering, cunnilingus, or sodomy should be
interpreted as outside the context of the words “sexual intercourse” as an element
of death under exceptional circumstance. Killing the wife while in the act if
having homosexual intercourse with woman is not death under exceptional
circumstance.
33. There are three requisites to make a killing as infanticide, to wit: (a) The
infant must be killed outside the maternal womb. An unborn fetus is not an infant.
Hence, killing an unborn fetus regardless of its viability or intrauterine life is not
infanticide, but abortion; (b) The infant must be viable. Even though the fetus is
born alive, if it is non-viable, it shall not be considered as an infant for purposes
of the crime of infanticide. Killing a non-viable fetus outside the womb is still
abortion; and (3) The infant must be less than three days old. For medical
purposes, a 3-month-old child is an infant. But for purpose of infanticide, an
infant is a child less than 3 days old. A child with a life of three (3) days or more

16 | P a g e
is not an infant; hence killing a child, who is not an infant, is not infanticide but
parricide or murder.
If abortion or unintentional abortion is committed, and the mother also died,
the offender is liable for a complex crime of parricide, murder or homicide with
intentional or intentional abortion. Intent to abort is an important element of
abortion. If the intention is to kill the mother, but the fetus also died, the offender
is liable for a complex crime of parricide, murder or homicide with intentional
abortion.
34. Physical injuries inflicted in a tumultuous affray is committed by
person or persons identified as responsible for using violence upon a participant
of a tumultuous affray, who suffered serious or less serious physical injuries
committed by an unidentified person in the course thereof. (Article 252 of RPC)

The provision on physical injuries inflicted in tumultuous affray is an

evidentiary measure designed to remedy a situation where the participant
thereof, who inflicted serious or less serious physical injuries upon the victim,
was not identified because of the confusion. Since there is uncertainty on
whether the one, who employed violence against the victim, committed serious
or less serious physical injuries or merely slight physical injuries, the former will
be punished for physical injuries inflicted in a tumultuous affray with a penalty
lesser than that for serious or less serious physical injuries.

Failure to identify the offender who inflicted less serious physical injury
upon the victim is an important element of physical injuries inflicted in a
tumultuous affray. If the accused is positively identified as a person, who inflict
the injuries on the victim, the former is not entitled to the lesser penalty
prescribed for physical injuries inflicted in a tumultuous affray. In such a case,
there is no confusion, which is the essence of tumultuous affray. Hence, the
accused is liable for the graver crime of less serious physical injuries (Lacson vs.
People, G.R. No. 243805, September 16, 2020)

35. In Guinhawa v. People, G.R. No. 162822, August 25, 2005, fraudulent
representation of the seller that the van to be sold is brand new constitutes other
deceit under Article 318. On the other hand, in People v. Rubaton, C.A., 65 O.G.
5048, issue of May 19, 1969, false representation that accused has a palay by
reason of which the victim parted his money in consideration of the palay
constitutes estafa under Article 315. Unlike in the Guinhawa case, the
transaction in Rubaton case is imaginary. (Marcos vs. People, G.R. No. 252839,
November 10, 2021)

36. If the finder surrenders lost property to a policeman, the latter shall
acquire the position occupied by the former. In sum, as far as the law is
concerned, the policeman shall be considered the finder of the lost property. If
the policeman fails to deliver the lost property to the owner, he is liable for theft.
Appropriating the property by the policeman is of the same character as that
made by one who originally found the same. (Pante vs. People, G.R. No. 218969,
January 18, 2021)

37. If the accused received the property with the consent of the owner but
he merely acquired physical possession in doing so (by reason of contract of
employment, boundary arrangement, or contract to repaint a car, obligation to
immediately return the property such bringing the gold to the goldsmith),
misappropriation shall be considered as taking without consent; hence, the
crime committed is theft (U.S. v. De Vera, G.R. No. L-16961, September 19, 1921)
or qualified theft (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000),
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).

17 | P a g e
 If the accused received the property with the consent of the owner and he
acquired legal possession in doing so by virtue of trust, commission,
administration or obligation involving the duty to make delivery or return (e.g.,
lease, deposit, commodatum, or quasi-contract, or partnership),
misappropriation shall be considered as estafa through conversion or
misappropriation (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000).

If the accused received the property with the consent of the owner and he
acquired ownership in doing so by virtue of a contract (e.g., sale, mutuum or
loan), failure to perform obligation under such contract is neither theft nor estafa
since the same is purely civil in character (People vs. Montemayor, G.R. No. L-
17449, August 30, 1962)

As a rule, the possession of the employee such as bank teller, collector,

cash custodian or branch manager is only physical. Hence, misappropriation of
property is qualified theft. Abuse of confidence is present since the property is
accessible to the employee (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000;
People vs. Tanchanco, G.R. No. 177761 April 18, 2012; People vs. Santos, G.R.
No. 237982, October 14, 2020; Manjares vs. People, G.R. No. 207249. May 14,
2021, Justice Caquioa). However, if the employee is an officer of the company
with discretion on how to use property or fund of the company to further its
interest, his possession is juridical; hence, misappropriation thereof is estafa.
Thus, the following officers are liable for estafa for misappropriating company
property: a. A bank president who held the money in trust or administration for
the bank in his fiduciary capacity with discretion on how to administer such fund
(People vs. Go, G.R. No. 191015, August 6, 2014); b. A corporate treasurer who
received the money for safe-keeping and administration (U.S. vs. Sevilla, G.R.
No. 18056, March 16, 1922; c. A corporate officer with discretion option on how
to use bending machine without the participation of the corporation (D’Aigle vs.
People, G.R. No. 174181, June 27, 2012). However, in Remo vs. Devanadera, G.R.
No. 192925, December 9, 2016, the Supreme Court ruled that the directors of a
corporation have no juridical possession over the corporate funds.

If the crime charged is estafa through misappropriation, but the crime

proven is theft committed by an employee, whose possession over the property
is merely physical, the variance principle can be applied. Thus, the accused can
be convicted of a qualified theft because the latter crime was necessarily included
in the crime of estafa charged in the information. (Reside vs. People, G.R. No.
210318, July 28, 2020)

Misappropriation by the industrial partner of the share of the capitalist

partner (People vs. Clemente, CA, 65 OG 6892) or the partnership fund to be
used in buying and selling mango (People vs. Dela Cruz, G.R. No. 21732,
September 3, 1924) is estafa. Theft is not committed (US vs. Reyes, G.R. No.
2867, September 11, 1906) Misappropriation by the industrial partner of the
partnership fund to be used in business of buying and selling mango is not theft
because possession of the industrial partner over the same is juridical. The
concept of juridical possession is not compatible with that of “taking without
consent,” which is the essence of theft (People vs. Tan Tay Cuan, CA, 57 OG
6964). However, the industrial partner is liable for estafa through
misappropriation. The industrial partner is holding the money in trust of the
partnership. (Orbe vs. Miaral, G.R. No. 217777, August 16, 2017)

38. In order for any group to be considered a syndicate under P.D. No.
1689, the perpetrators of an estafa must not only be comprised of at least five
individuals but must have also used the association that they formed or
managed to defraud its own stockholders, members or depositors. (Home
Development Mutual Fund vs. Sagun, G.R. No. 205698, July 31, 2018)

There are three parties involved in syndicated estafa, to wit: (1) the
corporation or association; (2) general public such as stockholders and members
18 | P a g e
of the association; they are the victims and (3) the owners and members of the
association, who used such association to defraud the general public; they are
the offenders, who must be at least five.

The association or corporation (first party) can neither be a victim nor the
offender in syndicated estafa. The association is just an instrument used by the
offenders to defraud the victim. A bank cannot charge its employees with
syndicated estafa for misappropriating its money. (Galvez v. Hon. CA, G.R. No.
187919, February 20, 2013) The crime committed by a bank employee or officer
is estafa or theft depending upon the nature of their position.

Globe Asiatique (GA) defrauded Home Development Mutual Fund (HDMF)

by requiring fictitious buyers to obtain loans from Pag-ibig fund. To be held liable
for syndicated estafa, officers of GA must use GA to defraud its stockholders or
members. HMDF cannot be a victim of syndicated estafa since it is not a
stockholder or a member of GA. To be held liable for syndicated estafa, GA must
solicit funds from the general public or its stockholders or members. In this case,
it is HMDF and not GA, which is soliciting funds from general public or Pag-ibig
members. (Home Development Mutual Fund vs. Sagun, G.R. No. 205698, July
31, 2018)

Atty. Alvarez, who is an employee of HDMF and who rendered notarial

services to GM, cannot be a member of syndicate in the crime of syndicated
estafa. He is not an owner or member of GA. (Home Development Mutual Fund
vs. Sagun, supra)

39. If the main objective is to kill the victim in a building, and fire is
resorted to as the means to accomplish such goal, the crime committed
is murder only. Murder qualified by means of fire absorbs arson since the latter
is an inherent means to commit the former (People vs. Cedenio, G.R. No. 93485,
June 27, 1994). Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No. 168050,
September 19, 2008) To apply this principle, intent to kill must be established
beyond reasonable doubt. (People vs. Baluntong, G.R. No. 182061, March 15,
2010).

If the main objective is to burn the building, but death results by reason
or on the occasion of arson, the crime is arson with qualifying circumstance of
resulting death (People v. Abayon, G.R. No. 204891, September 2016). The
resulting homicide is absorbed (People vs. Villacorta, G.R. No. 172468, October
15, 2008) since it will be considered as a modificatory circumstance. To apply
this principle, there must be no intent to kill, and the killing of the victim is
accidental.

If the main objective is to kill, and in fact the offender has already done so,
and arson is resorted to as a means to cover up the killing, the offender may be
convicted of two separate crimes of either homicide or murder, and arson (People
vs. Cedenio, G.R. No. 93485, June 27, 1994).

Pedro treacherously killed 2 victims, and burned the house to conceal the
killings. He is not aware that there is a baby in the house. As a consequence of
the burning of the house, the baby died. Pedro committed 2 murders. Arson
committed to conceal the crime is a separate crime. The death of the baby shall
be considered as a qualifying circumstance. The resulting homicide is absorbed
in arson since it will be considered as a modificatory circumstance.

Pedro treacherously killed 2 victims, and burned the house to conceal the
killings despite of the fact that he is aware that there is a baby in the house.
Pedro committed 2 murders qualified by the circumstance of treachery and
another murder qualified by the circumstance of by means of fire. The intention
of Pedro in burning the house is to conceal the two murders and to kill the victim.
19 | P a g e
There is intent to kill since he knows that the baby will die as a consequence of
burning the house. Hence, the burning of the house is not arson, but murder.

40. Under Article 349, bigamy is committed by any person who shall
contract a second or subsequent marriage before the former marriage has been
legally dissolved. The term "former marriage" in Article 349 refers to a valid
marriage, and not a null and void marriage. The term "second or subsequent
marriage" in Article 349 refers to a marriage which is valid in all aspect other
than circumstance that is void for being bigamous. Thus, voidness of the first or
second marriage is a defense in bigamy. (Pulido vs. People, G.R. No. 220149,
July 27, 2021)

Antonio was married legally to Josefa, and during the existence of this
marriage Antonio married Petra on January 1, 1950. On July 1, 1952, the first
wife died, and three months later on Oct. 1, 1952. Antonio married Catalina.
Antonio committed bigamy for contracting second marriage despite the first
marriage is subsisting. However, Antonio is not liable for bigamy for contracting
the third marriage because the first marriage has already been extinguished by
the death of the first wife, Josefa, when he contracted the third, and the second
marriage with Petra is void for being a bigamous marriage. Applying the Pulido
principle, Antonio need not obtain a judicial declaration of nullity of the second
marriage for being bigamous before entering into a third marriage for purpose of
raising the voidness of the former as a defense in bigamy.

CBP is legally married to OEM. Without obtaining a marriage license, CBP

contracted a second marriage to RST. What is the crime committed by CBP?
Reason briefly. CBP committed the crime of illegal marriage. Illegal marriage is
committed by any person who shall contract marriage knowing that the
requirements of the law have not been complied with provided that the act is not
constitutive of bigamy. In this case, CBP married RST without complying with
the requirement on marriage license. The act of contracting a second marriage
is not constitutive of bigamy since the second marriage contracted without
marriage license is null and void. Applying the Pulido principle, there is no
technically a second marriage for being null and void, and hence, contracting a
void second marriage is not bigamy.

41. In 2012, Rica published a story in an online news site, called Raffa,
where it was alleged that Mr. Willy, a businessman, who had a link with illegal
drugs, and human trafficking, lent a car to a former SC Chief Justice. After four
months, RA No. 10175, which punishes cybercrimes including cyber libel, was
enacted. However, there are no evidences proving the illegal activities of Mr.
Willy. In 2014, the story was republished in the said site. It is settled that a single
defamatory statement, if published several times, gives rise to as many offenses
as there are publications. Each and every publication of the same libel
constitutes a distinct offense. This is the “multiple publication rule” which is
followed in our jurisdiction. (Soriano v. Intermediate Appellate Court, G.R. No.
72383, November 9, 1988; Brillante v. CA, G.R. Nos. 118757 and 121571,
October 19, 2004) With the multiple publication rule, Rica can be charged of
libel for the 2012 publication of defamatory story, and cyber libel for the 2014
republication thereof without violating the rule on double jeopardy.

The penalty for libel under the Revised Penal Code is prision correccional
in its minimum and medium periods. If communication or information
technology is used in committing libel, RA No. 10175 provides that the penalty
for libel shall be graduated one degree higher. In sum, the penalty for cyber libel
is prison correccional in its maximum period to prision mayor in its minimum
period.

The period for prescription for cyber libel is governed by Article 90 of the
Revised Penal Code. Act No. 3326 governs prescription of offense punishable
under special law. However, cyber libel is not punishable under special law. RA
20 | P a g e
No. 10175 does not provide a penalty for cyber libel. Hence, in a cyber libel case,
the accused is actually being charged with libel under the Revised Penal Code
with the qualifying circumstance of using information or communication
technology under RA No. 10175. Since the crime is punishable under the Revised
Penal Code, the provision of the Code on prescription and not Act 3326 will apply.

Under Article 90 of the Revised Penal Code, the crime of libel shall
prescribe in one year while crime punishable by prision mayor shall prescribe in
15 years. However, the one-year rule is only applicable to libel and not to cyber
libel. Hence, the 15-year rule will apply since the highest component of the
penalty for cyber libel is prision mayor in its minimum period. (Tolentino v.
People, G.R. No. 240310, August 6, 2018)

When the accused has been specifically identified as "author, editor, or

proprietor" or "printer/publisher" of the publication, there is no requirement to
prove that they had knowledge and participation in the publication of the libelous
article. Thus, a claim of absence of participation by those persons responsible
under Article 360 will not shield them from liability. The law is clear: These
persons are liable for libel as if they were the author of the defamatory writing.
(Macasaet vs. So, G.R. No. 187230, January 11, 2021; People vs. Santos and
Ressa, CA-G.R. No. 44991, July 7, 2022)

41. Under Section 10 (a) of RA No. 7610, child abuse pertains to acts of
child abuse, cruelty or exploitation or to be responsible for other conditions
prejudicial to the child's development not covered by the Revised Penal Code.
From the plain language of Section 10(a), the acts punished under it and those
punished under the RPC are mutually exclusive. Acts which are already covered
by the RPC (e.g., oral defamation or physical injuries) are excluded from the
coverage of Section 10(a). Brinas vs. People, G.R. No. 254005, June 23, 2021,
Justice Caquioa) The intention of the law in using the phrase “not covered by
the Revised Penal Code” is to prosecute the offender either for the crime under
RA No. 7610 or felony under RPC and not for both crimes.

In sum, if the offender threatened to kill a child or inflicted injuries on him

on the spur of the moment without intent to degrade, debase or demean him,
the former should be charged with grave threat or physical injuries under the
Revised Penal Code without correlating it with RA No. 7610. On the other hand,
if the offender threatened to kill a child or inflicted injuries on him with intent to
degrade, debase or demean him, the former should be charged with child abuse
under Section 10 (a) of RA No. 7610 without correlating it with the Revised Penal
Code.

In Bongalon v. People, G.R. No. 169533, March 20, 2013, accused saw the
victim and his companions hurting his minor daughters. Angered, accused
struck minor-victim at the back with his hand and slapped his face. Since the
accused committed the act at the spur of the moment, they are perpetrated
without intent to degrade the dignity of the victim. Without such intent, the crime
committed is not child abuse under R.A. No. 7610 but merely slight physical
injuries.

In Escolano vs. People, G.R. No. 226991, December 10, 2018,

complainants, who are minors, threw ketchup sachets against the daughter of
the accused. But it was the accused, who was hit by the sachets twice. Accused
exclaimed, "Putang ina ninyo, gago kayo, wala kayong pinag-aralan, wala kayong
utak, subukan ninyong bumaba dito, pakakawalan ko ang aso ko, pakakagat ko
kayo sa aso ko." Threatening to release her dog to chase and bite the minors
made in the heat of anger is not child abuse. Accused merely intended that they
stop their rude behavior. Absence of any intention to degrade the dignity of
minors, accused is only liable for other light threats.
21 | P a g e
 In Brinas vs. People, G.R. No. 254005, June 23, 2021, accused, a
directress of Montessori school, uttered "pinakamalalandi, pinakamalilibog,
pinakamahadera at hindot, Mga putang ina kayo” against two minor students.
Accused’ acts were only done in the heat of anger, made after she had just
learned that the complainants had deceivingly used her daughter's name to send
a text message to another student, in what accused thought was part of a bigger
and harmful scheme against the student body. The accused was acquitted of
child abuse for failure to prove intent to degrade the complainants.

In Bongalon case, the accused were convicted of slight physical injuries

instead of child abuse. In Escolano case, accused was convicted of other light
threats instead of child abuse. In Brinas case, the accused were not held liable
for child abuse or any other crime.

The Bongalon principle is inapplicable: (1) if the accused did not assault a
child in the heat of anger or as a spontaneous reaction to his misbehavior; or (2)
if the child suffered serious physical injuries lacerations, fractured bones, burns,
or internal injuries.

In Patulot vs. People, G.R. No. 235071, January 7, 2019, throwing boiling
cooking oil, which directed against the mother of a baby and 3-year-old child,
which consequently burned the faces and skin of the minors, is not constitutive
of child abuse involving degrading the dignity of a child. Since throwing boiling
oil is not directed against the children, intent to degrade, debase or demean their
dignity is not established. However, the accused is still liable of child abuse
involving the infliction of serious physical injury.

Section 10 (a) of RA No. 7610 punishes child abuse. There are several
crimes of child abuse under Section 3 (b) thereof, the two of which are
psychological and physical abuse and any act by deeds or words which debases,
degrades or demeans the intrinsic worth and dignity of a child as a human being.
Child abuse involving debasing, demeaning or degrading a child under Section
3 (b) (2) is different from child abuse involving psychological and physical abuse
under Section 3 (b) (1). Under the implementing rules, “physical injury” includes
lacerations, fractured bones, burns, internal injuries, severe injury or serious
bodily harm suffered by a child.

In the case of Patulot, the information does not allege that the accused
debased, demeaned or degraded the complainants as children. The crimes
alleged in the two informations are child abuses involving burning under Section
3 (b) (1). Hence, even without intent to degrade, debase or demean a child, the
accused was convicted of two counts of child abuse.
Article 233 of the Family Code prohibits the infliction of corporal
punishment by teachers. A schoolteacher in employing unnecessary violence on
her minor student, who even fainted, is liable for child abuse under RA No. 7610.
(Rosaldes v. People, G.R. No. 173988, October 8, 2014)
42. Consent is immaterial in cases involving sexual abuse under R.A. No.
7610 where the offended party is below 16 years of age. However, consent is
material when the offended party is a child, who is 16 years old or above. In such
a case, consent of the child is a defense in cases involving sexual abuse. If the
prosecution proved that the accused have sexual intercourse with child through
coercion or influence, the sex is non-consensual. Hence, the accused is liable for
sexual abuse. If the prosecution failed to prove coercion or influence, the sex is
consensual. Hence, the accused is not liable for sexual abuse. In Bangayan vs.
People, G.R. No. 235610, September 16, 2020, there are special circumstances
that reveal the presence consent of AAA. The sexual congress between accused
and AAA was not limited to just one incident. They were in a relationship even
after the incident alleged in the Information and had even produced two (2)
children. It is clear that AAA, who is capable to discern good from evil, give

22 | P a g e
consent to the sexual act. Accused was acquitted. Note: Prosecution failed to
prove coercion or influence.

43. If the acts constitute sexual abuse, and rape, sexual assault, or acts
of lasciviousness, the accused can neither be prosecuted for both crimes because
of the rule on double jeopardy nor for complex crime since sexual abuse is
punishable under special law. Components of complex crime must be felonies
(People vs. Abay, G.R. No. 177752, February 24, 2009)

If the child is 16 years old or more, and the act of the offender constitutes
rape and sexual abuse, he shall be prosecuted for graver crime of rape under the
Revised Penal Code. Prosecuting the accused for the lesser crime of sexual abuse
under RA No. 7610 is unfair to the child and will ago against the spirit of RA No.
7610 to protect children by prescribing a higher penalty. (People vs. Tulugan,
G.R. No. 227363, March 12, 2019)

If the child is 16 years old or more, and the act of the offender constitutes
sexual assault or acts of lasciviousness and sexual abuse, the accused shall be
prosecuted for graver crime of sexual abuse under RA No. 7610. In this situation,
sexual abuse shall be called lascivious conduct. Prosecuting the accused for the
lesser crime of sexual assault or acts of lasciviousness under the Revised Penal
Code is unfair to the child and will ago against the spirit of RA No. 7610 to protect
children by prescribing a higher penalty. (People vs. Tulugan, G.R. No. 227363,
March 12, 2019)

If the child is under 16 years old, and the act of the offender constitutes
rape and sexual abuse, the accused shall be prosecuted for graver crime of
statutory rape under the Revised Penal Code. Under Section 5 (b) of RA No. 7610
as amended by RA No. 11648, when the child subjected to sexual abuse is under
16 years of age, the perpetrators shall be prosecuted for rape.

If the child is under 16 years old, and the act of the offender constitutes
acts of lasciviousness and sexual abuse, the accused shall be prosecuted for acts
of lasciviousness under the Revised Penal Code in relation to RA No. 7610. Under
Section 5 (b) of RA No. 7610, when the child subjected to sexual abuse is under
16 years of age, the perpetrators shall be prosecuted for rape or lascivious
conduct, Provided, That the penalty for lascivious conduct shall be reclusion
temporal in its medium period. Acts of lasciviousness is within the contemplation
of the words “lascivious conduct” in RA No. 7610. (People vs. ZZZ, G.R. No.
232500, July 28, 2020)

If the child is under 16 years old, and the act of the offender constitutes
simple sexual assault and sexual abuse, the accused shall be prosecuted for
sexual assault under the Revised Penal Code in relation to RA No. 7610. Under
Section 5 (b) of RA No. 7610, when the child subjected to sexual abuse is under
16 years of age, the perpetrators shall be prosecuted for rape or lascivious
conduct, Provided, That the penalty for lascivious conduct shall be reclusion
temporal in its medium period. Since reclusion temporal in its medium period
under RA No. 7610 is higher than the penalty (of prision mayor) for sexual
assault under the Revised Penal Code, it is only fair for the child to impose the
graver penalty under RA No. 7610. (People vs. ZZZ, G.R. No. 232500, July 28,
2020) In sum, sexual assault is within the contemplation of the words “lascivious
conduct” in Section 5 of RA No. 8710. (People v. Chingh, G.R. No. 178323, March
16, 2011; People vs. XXX, G.R. No. 230981, July 15, 2020)

If the victim is under 16 years old, and the act of the offender constitutes
qualified sexual assault and sexual abuse, the accused shall be prosecuted for
qualified sexual assault and penalized under the Revised Penal Code. Under
Section 5 (b) of RA No. 7610, when the child subjected to sexual abuse is under
16 years of age, the perpetrators shall be prosecuted for rape or lascivious
conduct, Provided, That the penalty for lascivious conduct shall be reclusion
23 | P a g e
temporal in its medium period. Since the Revised Penal Code prescribes a grave
penalty of reclusion temporal for qualified sexual assault, there is no need to
apply the penalty under RA No. 7610. In sum, qualified sexual assault is within
the contemplation of the word “rape” in Section 5 of RA No. 8710. (People v.
Bonaagua, G.R. No. 188897, June 6, 2011)

44. The person, who knowingly leases or subleases, uses or allows to be

used any house, building or establishment for the purpose of promoting
trafficking in persons is liable for promoting trafficking in person (Section 5 of
RA No. 9208). The pimp is liable for trafficking in person (Section 4). The
customer of the trafficked prostitute is liable for use of trafficked victim (Section
11). The trafficked prostitute is exempt from criminal liability for the crime of
prostitution (Sections 17 and 32)

In People vs. Sayo, G.R. No. 227704, April 10, 2019, Justice Caquioa, the
accused owned a house where its room was offered for lease for every paying
customer of the complainants, who engaged in sex for a fee. Accused is aware of
these prostitution activities since he cleaned the room after the complainant and
her customer finished using it. Moreover, he sold condoms to complainant's male
customers before using the room. The trial court trial court convicted him of
qualified trafficking in person for knowingly leasing his house for the purpose of
promoting trafficking in persons under Section 5 of RA No. 9208. The Supreme
Court said that the trial court committed a serious error. The crime under
Section 5 of RA 9208 must be properly denominated as “acts that promote
trafficking in persons,” and not qualified trafficking in person.

45. XXX and YYY maintained their three biological children (minors) to
perform acts of cybersex on pornographic websites for different foreign
customers in exchange for money or ordering them to dance naked in front of a
computer with internet connectivity while facilitating the webcam sessions and
chatting with a particular customer. They are liable for three counts of qualified
trafficking in persons. XXX and YYY achieved their criminal design in requiring
their children to perform acts of cybersex for different foreign customers by
taking advantage of their children’s vulnerability as minors and deceiving them
that the money they make from their lewd shows is needed for the family’s daily
sustenance. The circumstances that the victims are minors and the traffickers
are ascendants of the victims qualify the crime. (People v. XXX, G.R. No. 235652,
July 9, 2018)

XXX induced his 14-year-old girlfriend to send him pictures of her vagina
and breasts through Facebook Messenger using a mobile phone. He was
convicted of cyber child pornography for persuading or inducing a child through
a computer system to perform in the creation or production of any form of child
pornography. (Cadajas v. People, G.R. No. 247348, June 15, 2022)

XXX induced his 14-year-old girlfriend to dance nude during his birthday
party. The crime committed is indecent shows under Section 9 of R.A. No. 7610,
which punishes a person who shall persuade or induce a child to perform in
indecent shows, whether live or in video. Note: RA No. 11930 is not violated since
the crime is not committed through online.

XXX and YYY maintained three poor adult women to perform acts of
cybersex on pornographic websites for different foreign customers in exchange
for money or ordering them to dance naked in front of a computer with internet
connectivity while facilitating the webcam sessions and chatting with a
particular customer. They are liable for trafficking in persons. R.A. No. 9208
punishes a person who shall maintain a person for pornography by taking
advantage of their vulnerability due to poverty.

XXX asked an adult woman to send him pictures of her vagina and breasts
through Facebook Messenger using a mobile phone in consideration of
24 | P a g e
P500,000.00. The woman agreed. This is not trafficking in person because XXX
is not hiring, maintaining, etc. the woman to engage in pornography. Child
pornography or indecent show under R.A. No. 7610 is not committed since the
woman is not a child. XXX and the woman are liable for cybersex since the
lascivious exhibition of sexual organs was committed with the aid of a computer
system for consideration. Cybersex under R.A. No. 10175 includes cyber
pornography for favor and consideration. (Disini v. Secretary of Justice, G.R. No.
203335, February 18, 2014)

XXX induced his 19-year-old girlfriend to send him pictures of her vagina
and breasts through Facebook Messenger using a mobile phone. XXX is not
criminally liable. Cyber child pornography is not committed since his girlfriend is
not a child. Cybersex is not committed since there is no consideration involved.

Maria, a lawyer, for consideration of P5,000.00, danced and undressed

herself in front of Em while the music “making love out of nothing at all” was
being played. This is not trafficking in person because Em is not hiring,
maintaining, etc. Maria to engage in pornography, and there is no taking
advantage of her vulnerability. A lawyer is not vulnerable to being exploited in
pornography. Child pornography or indecent show under R.A. No. 7610 is not
committed since Maria is not a child. Cybersex is not committed since the
lascivious exhibition of sexual organs was not made with the aid of a computer
system. The crime committed is indecent show under the Revised Penal Code,
which punishes those who shall exhibit indecent shows in theaters, fairs,
cinematographs, or any other place, whether live or in film.

46. To establish the first link in the chain of custody, and that is the
seizure of the drug from the accused, the prosecution must comply with Section
21 of R.A. No. 9165 as amended by R.A. No. 10640. Under Section 21 of RA No.
9165 as amended, the inventory and photography of the seized items must be
made in the presence of “at least three persons”, to wit: (1) the accused; (2) elected
public official, and (3) the media or representatives of National Prosecution
Service. Compliance with the three-witnesses rule is mandatory. So as not to
render the seizures of evidence void, two requisites must be present: (1)
justifiable ground for not complying with the three-witnesses rule and (2) that
the integrity and evidentiary value of the evidence had been preserved. (People
vs. Claudel, G.R. No. 219852, April 3, 2019, Justice Caguioa)

Under Section 21 of RA No. 9165 as amended by RA No. 10640, the

inventory and photography of the seized items must be made in the presence of
“at least three persons”, to wit: (1) the accused or the person from whom such
items were confiscated or his representative or counsel; (2) any elected public
official, and (3) the media or representatives of National Prosecution Service. RA
No. 9165 as amended uses the disjunctive “or” in the phrase “the National
Prosecution elected public official Service or the media.” Thus, a representative
from the media and a representative from the National Prosecution Service are
now alternatives to each other (People vs. Que, G.R. No. 212994, January 31,
2018; People vs. Baluyot, G.R. No. 243390, October 05, 2020)

The following are justifiable grounds for failure to comply with the three-
witnesses rule: 1. The attendance of elective official and media or NPS
representative was impossible because the place of arrest was a remote area; 2.
The safety of these required witnesses during the inventory and photograph of
the seized drugs was threatened by an immediate retaliatory action of the
accused or any person acting for and in his behalf; 3. The elected official
themselves were involved in the punishable acts sought to be apprehended; 4.
The time constraints and urgency of the anti-drug operations, which often rely
on tips of confidential assets, prevented the law enforcers from obtaining the
presence of the required witnesses even before the offenders could escape; or 5.
Earnest efforts to secure the presence of these required witnesses within the
period required under Article 125 of RPC prove futile through no fault of the
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arresting officers, who face the threat of being charged with arbitrary detention.
(People vs. Lim, G.R. No. 231989, September 4, 2018)

Section 23 of RA No. 9165, any person charged under any crime involving
dangerous drugs regardless of the imposable penalty shall not be allowed to avail
of the provision on plea-bargaining. However, this provision was declared
unconstitutional for being contrary to the rule-making authority of the Supreme
Court (Estipona, Jr. vs. Lobrigo, G.R. No. 226679, August 15, 2017). Following
this pronouncement, the Supreme Court issued A.M. No. 18-03-16-SC providing
for a plea-bargaining framework in drugs cases, while the Secretary of Justice
issued DOJ Circular No. 27 on plea bargaining. The Supreme Court guidelines
on acceptable plea bargaining are different from those provided by the DOJ. On
July 26, 2022 the Supreme Court came out with a Clarificatory Guidelines on
Plea-Bargaining in Drugs Cases under which the Dangerous Drugs Courts can
overrule the objection of the public prosecutor to accused’s motion to plea to a
lesser offense and allow plea-bargaining even without the consent to the
prosecutor. The court is required to reject the objection of the prosecutor based
on the circumstance that the proposed plea is not in accordance with the DOJ
guidelines. In sum, what is important is the SC guidelines.

47. A violation of a law (e.g., a law on public bidding) that is not penal in
nature does not, as it cannot, automatically translate into a violation of Section
3(e) of RA No. 3019. (Concurring opinion of Justice Caguioa, Villarosa vs. People,
G.R. Nos. 233155-63, June 23, 2020) Violations of the applicable procurement
laws (that generally required public bidding) do not mean that the elements of
the crime under Section 3 (e) of RA No. 3019 are already present as a matter of
course. For there to be a violation under Section 3 (e) of R.A. No. 3019 based on
a breach of applicable procurement laws, one cannot solely rely on the mere fact
that a violation of procurement laws has been committed. It must be shown that
(1) the violation of procurement laws caused undue injury to any party or gave
any private party unwarranted benefits, advantage or preference; and (2) the
accused acted with evident bad faith, manifest partiality, or gross inexcusable
negligence. (Martel vs. People, G.R. No. 224720-23, February 2, 2021, Justice
Caquioa) such as awarding contract without public bidding to a relative (Cabrera
v. People, G.R. Nos. 191611-14, July 29, 2019; People v. Austria, G.R. 243897,
June 08, 2020) or involving overpriced fire extinguishers and the supplies. (Oani
v. People, G.R. No. 139984, March 31, 2005)

In Arias v. Sandiganbayan, G.R. Nos. 81563 and 82512, December 19,

1989, the property bought by the City is overpriced. When the accused was
appointed as treasurer, the sale of the property had already been consummated.
Accused was charged with violation of Section 3(e) of R.A. No. 3019 for causing
damage to the government through manifest partiality and evident bad faith. The
only evidence presented by the prosecution is his signature on the voucher. He
was acquitted. Heads of offices can rely to a reasonable extent on their
subordinates on preparation of bids, purchase of supplies, or negotiations. Any
executive head agencies or commissions can attest to the volume of papers that
must be signed. Thus, executive head cannot be convicted on the sole basis of
signature or approval appearing on a voucher. To sustain a conspiracy charge
and conviction, evidence must be presented other than her signature on the
voucher.

The principle in the Arias case is not applicable in the following cases:

a. If other than the accused’s signature on the voucher, circumstances

show evident bad faith, or manifest partiality such as: (a) Where the accused has
foreknowledge of existing anomaly – e.g., mayor signed the inspection report and
the disbursement voucher despite the fact that he had foreknowledge that the
materials delivered by Guadines have already been confiscated by the DENR
(Escara v. People, G.R. No. 164921, July 8, 2005); or (b) where accused approved
the voucher without indication of the retention money required by law, and he
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even inspected the construction site of hospital boat being constructed, in which
he should have noticed the financial weakness of the contractor and the defective
works (Rivera v. People, G.R. No. 156577, December 3, 2014);

b. If other than the accused’s signature on the voucher, circumstances

show gross inexcusable negligence such as where there is deviation from ordinary
procedure, which necessitate further investigation – e.g., mayor issued and
encashed municipal checks despite the facts that the disbursement vouchers
were in the name of Kelly Lumber but the checks were payable to another person
and not to Kelly Lumber (Cruz v. The Hon. Sandiganbayan, G.R. No. 134493,
August 16, 2005) or if there were circumstances that should have prompted them
to make further inquiries on the transactions subject of this case. (Abubakar vs.
People, G.R. No. 202408, June 27, 2018)

c. If the public officer acting in his capacity as head of office has not relied
on his subordinates but on officers of equal rank such as heads of the Office of
the City Treasurer and, the Office of the City Accountant in approving the cash
advances in the amount of P18 million to paymaster despite of the failure to
liquidate previous cash advances (Jaca v. People, G.R. No. 166967, January 28,
2013); and

d. If the documents involving the release of funds are not so voluminous

so as to preclude him from studying each one carefully. (Santillano v. People, G.R.
Nos. 175045–46, March 3, 2010)

42. If there are several accused in plunder case, who acted under a single
conspiracy, or wheel conspiracy, or chain conspiracy, the main plunderer must
be identified. The law on plunder requires that a particular public officer must
be identified as the one who amassed, acquired or accumulated ill-gotten wealth
in the amount of at least P50 million. Surely, the law requires in the criminal
charge for plunder against several individuals that there must be a main
plunderer and her co-conspirators. (See: Arroyo vs. People, G.R. No. 220598,
April 18, 2017)

In Arroyo vs. People, supra, a case for plunder involving the

misappropriation of PCSO funds amounting to P360 million was filed against ten
(10) accused including President Arroyo. However, the information did not
identify President Arroyo or any other accused as the principal plunderer. Hence,
the case was dismissed. It was held that because plunder is a crime that only a
public official can commit by amassing, accumulating, or acquiring ill-gotten
wealth in the aggregate amount or total value of at least ₱50,000,000.00, the
identification in the information of such public official as the main plunderer
among the several individuals thus charged is logically necessary under the law
itself. The individuals charged therein were 10 public officials; hence, it was only
proper to identify the main plunderer or plunderers among the 10 accused who
herself or himself had amassed, accumulated, or acquired ill-gotten wealth with
the total value of at least ₱50,000,000.00.

Plunder can be committed by the public officer acting alone (Ejercito v.

Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006, Concurring opinion of
Justice Panganiban) Plunder can be committed by the public officer in
connivance with other persons. If the public officer committed plunder in
connivance with other persons, the “other persons” or the participants
(secondary offenders) are also liable on the basis of conspiracy. Moreover, the
participants, with whom the public officer connived in committing plunder, are
liable under R.A. No. 7080. Under Section 2 of this law, any person who
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense.

In single conspiracy, the public officer conspired with a single individual

or group in committing plunder. The main plunderer in this case must be a
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public officer. But the participants in this case can be public officers or private
individuals. In Juan Ponce Enrile v. People, G.R. No. 213455, August 11, 2015, in
the crime of plunder, the amount of ill-gotten wealth acquired by each accused
in a conspiracy is immaterial for as long as the total amount amassed, acquired
or accumulated is at least P50 million.

Under the wheel or circle conspiracy, there is a single person or group (the
hub) dealing individually with two or more other persons or groups (the spokes).
(Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007) In wheel conspiracy
involving plunder, the public officer (main plunderer or the hub) amasses,
accumulates and acquires ill-gotten wealth in connivance with others (the
spokes). 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.

48. Section 12 of RA No. 11053 provides that the defense that the recruit,
neophyte, or applicant consented to being subjected to hazing shall not be
available to persons prosecuted for hazing. Any form of approval, consent, or
agreement, whether written or otherwise, or of an express waiver of the right
to object to the initiation rite or proceeding, which consists of hazing, made
by a recruit, neophyte, or applicant prior to an initiation rite that involves
inflicting physical or psychological suffering, harm, or injury, shall be void and
without any binding effect on the parties.

Generally, mere presence at the scene of the crime does not in itself
amount to conspiracy. (Dungo v. People, supra) However, under RA No. 8049 as
amended by RA No. 11053, mere presence can be a source of criminal liability.
Section 14 punishes all persons who are present in the conduct of the hazing.
However, the penalty is higher if the persons, who are present during the
hazing, are (1) officers of the fraternity, sorority, or organization; (2) former
officers, nonresident members, or alumni thereof; and (3) members thereof who
are intoxicated or under the influence of alcohol or illegal drugs.

The law punishes all persons, who actually planned the conduct of the
hazing. The original version of RA No. 8049 merely punished officers, former
officers, or alumni of the fraternity, sorority or organization, who actually
planned the hazing. Under this law as amended by RA No. 11053, any person
including a non-member is criminally liable for planning the conduct of hazing.
Even though these planners were not present when the acts constituting hazing
were committed, they shall still be liable as principals.

The law also punishes the adviser of a fraternity, sorority, or

organization who is present when the acts constituting the hazing were
committed and failed to take action to prevent the same from occurring or
failed to promptly report the same to the law enforcement authorities if such
adviser or advisers can do so without peril to their person or their family.
The liability of the adviser arises, not only from his mere presence in the hazing,
but also his failure to prevent the same. (Dungo v. People, supra)

The owner or lessee of the place where hazing is conducted shall be liable
as principal, when such owner or lessee has actual knowledge of the hazing
conducted therein but failed to take any action to prevent the same from
occurring or failed to promptly report the same to the law enforcement
authorities if they can do so without peril to their person or their family.

If the hazing is held in the home of one of the officers or members of the
fraternity, sorority, or organization, the parents shall be held liable as principals
when they have actual knowledge of the hazing conducted therein but failed to
take any action to prevent the same from occurring or failed to promptly report
the same to the law enforcement authorities if such parents can do so without
peril to their person or their family.

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 The school authorities including faculty members as well as barangay,
municipal, or city officials shall be liable as an accomplice and likewise be held
administratively accountable for hazing conducted by the fraternities, sororities,
other organizations, if it can be shown that the school or barangay, municipal,
or city officials allowed or consented to the conduct of hazing, but such officials
failed to take any action to prevent the same from occurring or failed to promptly
report to the law enforcement authorities if the same can be done without peril
to their person or their family.

49. Physical violence against woman is punishable under Section 5 (a).

However, if physical violence caused mental or emotional anguish to the victim,
the offender may be prosecuted for psychological violence against woman under
Section 5 (i). Physical violence will be considered as an element of psychological
violence.

In Dinamling v. People, G.R. No. 199522, June 22, 2015, accused’s acts of
publicly punching, kicking and stripping the victim of her pants and underwear,
although obvious acts of physical violence, are also instances of psychological
violence since it was alleged and proven that they resulted in her public ridicule
and humiliation and mental or emotional distress. Accused was convicted of the
psychological violence against woman. Physical violence was treated as a mere
element of the graver crime of psychological violence against woman.

Deprivation of legal support under the Family Code by a man to his wife
or children may constitute economic violence against a woman under Section 5
(e) of RA No. 9262 or psychological violence against a woman under Section 5 (i).
However, deprivation of financial support per se does not violate RA No. 9262
unless it is accompanied by the other elements of economic violence or
psychological violence.

The crimes penalized under Section 5 (i) and 5 (e) of RA No. 9262 are mala
in se, and not mala prohibita, even though R.A. No. 9262 is a special law. The
acts punished therein are inherently wrong and the language used under the
said special laws requires a mental element. Being a crime mala in se, there must
thus be a concurrence of both actus reus (criminal act) and mens rea (criminal
intent) to constitute a crime. (Acharon vs. People, G.R. No. 224946, November
9, 2021, Justice Caquioa)

The willful deprivation of financial support is the actus reus of economic

violence under Section 5 (e), while the mens rea is the intention to control or
restrict the woman’s conduct. To violate Section 5 (e), there must be allegation
and proof that the act was done with intent to control or restrict the woman’s
and/or child’s or her children’s actions or decision.

The actus reus of psychological violence under Section 5 (i) is the willful
denial of financial support, while the mens rea is the intention to inflict mental
or emotional anguish upon the woman. To violate Section 5 (i), there must be
allegation and proof that the accused had the intent of inflicting mental or
emotional anguish upon the woman, with the willful denial of financial support
being the means selected by him to accomplish the said purpose.

In Acharon vs. People, supra (Justice Caquioa), the Supreme Court finds
the accused not guilty of psychological violence under Section 5 (i) for he tried,
as he successfully did for a time, to provide financial support to his wife. The
accused failed to provide financial support only when his apartment in Brunei
was razed by fire, and when he met a vehicular accident there. Moreover, he had
already paid P71,000 of the P85,000 of the debt the spouses were obligated to
pay out of their community property. The Court also found the accused not guilty
of economic violence under Section 5 (e). There is no proof that he deliberately
refused to give support in order to control the behavior or actions of his wife.

29 | P a g e
Neither was there any allegation or proof that he prevented his wife from seeking
gainful employment or pursuing economic opportunities.

Concubinage and bigamy are punishable under the Revised Penal Code.
However, if concubinage or bigamy caused mental or emotional anguish to the
offended wife, the offending husband may be prosecuted for psychological
violence against a woman. (Araza vs. People, G.R. No. 247429, September 8,
20200

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