Supplemental Reviewer Criminal Law

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 1. CHARACTERISTIC OF CRIMINAL LAW - There are three characteristics of criminal law, to wit: (1) generality (2) territoriality, and (3) prospectivity. The general, territorial and prospective characteristics of criminal law are principles that define and demarcate the scope and limitation of the operation of criminal law. Under these three principles, the operation or enforceability of criminal law is limited to wrongful acts committed on or after its effectivity (prospectivity) within the territory of the Philippines (territoriality) by person living and sojourning therein (generality). 2. GENERALITY - Generality principle is akin to territoriality principle in the sense that the demarcating factor of both principles is the territory of the Philippines. Under generality principle, criminal law is enforceable to person living or sojourning in the territory of the Philippines. Under the territoriality principle, criminal law is applicable only to criminal act committed within the territory of the Philippines. But the concept of generality is different from territoriality. The applicability of territoriality principle or generality principle will depend on the issue raised by the accused in questioning the jurisdiction of the court. If the accused attacks the jurisdiction of the court because of the unique characteristic of his person (e.g. he is a foreigner, military, hermit, primitive, ambassador, legislator, President), the applicable principle is generality. If the accused attacks the jurisdiction of the court due to the unique characteristic of the place where the crime was committed (e.g. the place of commission is foreign vessel, embassy or high sea) etc, the applicable principle is territoriality. a. Military officers - The Revised Penal Code and special criminal laws are enforceable against military men living or sojourning in the Philippines. However, CA 408 (Articles of War) which vests jurisdiction over members of the AFP to the courts-martial. RA 7055 (AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY) did not divest the military courts of jurisdiction to try cases involving "service-connected crimes or offenses" under CA 408 (Example: Mutiny or sedition, quarrels, frays; disorders, breaking an arrest or escaping from confinement, releasing prisoners without proper authority, wrongful appropriation of captured property, corresponding with, or aiding the enemy, spies, dueling, fraud against the government affecting matters and equipment). In fact, RA No. 7055 mandates that these service-connected crimes shall be tried by the court-martial (Navales v. Abaya, G.R. No. 162318, October 25, 2004, Callejo). CA 408 is a law of preferential application since it excludes members of the AFP from the operation of the Revised Penal Code and special criminal laws if the crimes committed by them are service-connected as defined by RA 7055. b. Consular officers - Despite the ruling in Schneckenburger vs. Moran, consular officers and employees are now enjoying immunity from criminal prosecution of acts performed in the exercise of consular function under 1967, Convention on Consular Relation. Slander (Liang vs. People, GR NO 125865, January 28, 2000) or reckless imprudence resulting in homicide is not function-related. Consul is liable for committing this crime. 3. TERRITORIALITY PRINCIPLE: Under the principle of territoriality, the Philippines has jurisdiction over crimes committed inside its territory except as provided in the treaties and laws of preferential application. a. Embassy - The ground occupied by US embassy is in fact the territory of the USA to which the premises belong through possession or ownership. A person who committed a crime within the premises of an embassy will be prosecuted under the law of Philippines because of the principle of territoriality (See: Reagan vs. Commission on Internal Revenue, 30 SCRA 968,

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA En Banc; Answers to 2009 Bar Examination Questions by UP Law Complex). However, jurisdiction of the Philippines over the embassy is limited or restricted by “the principles of inviolability of diplomatic premises”, which is a generally accepted principle of international law. Warrant of arrest cannot be served inside US embassy without waiver of American government of its right under the principle of inviolability. a. English rule - There are two fundamental rules in International Law regarding crimes committed aboard a foreign merchant vessel (not military vessel), if the same is within the 12mile territorial water (not internal or archipelagic water or high seas) of the Philippines to wit: (1) French rule - Crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines are subject to the jurisdiction of the flag state (extra-territoriality principle) unless their commission affects the peace and security of our country. (2) English rule – Crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines are subject to jurisdiction of the Philippines (territoriality principle) unless their commission does not affect its peace and security, or has no pernicious effect therein. It is the English rule that obtains in this jurisdiction. b. Convention of the law of the Sea - Under the Convention on the Law of the Sea, the flag state of foreign merchant vessel passing through the territorial sea has jurisdiction over crimes committed therein. However, the Philippines can exercise jurisdiction to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage in the following cases: (1) if the consequences of the crime extend to the coastal State; (2) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (3) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (4) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. c. Drug trafficking - Following the English rule, the Philippines has no jurisdiction over transportation of opium in a foreign vessel in transit in territorial water of our country because possession of opium does not have a pernicious effect on our country (U.S. vs. Look Chaw). But under the Convention of the law of the Sea, the Philippines can exercise jurisdiction to arrest any person or to conduct any investigation involving transportation of dangerous drugs since this is a measure necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 4. EXTRA-TERRITORIALITY - Under the principle of extra-territoriality, the Philippines has jurisdiction over crimes committed outside its territory for those five instances mention in Article 2 such as crime committed in vessel of Philippines registry (ownership is not material), function-related crime committed by public officer (such as corruption or direct bribery), crimes against national security (such as treason, espionage; rebellion is not a crime against national security), and crime against law of nation such as piracy and mutiny). In People vs. Tulin, G.R. No. 111709, August 30, 2001- “Piracy is an exception to the rule on territoriality in criminal law (Article 2). The same principle applies even if accused were charged, not with a violation of qualified piracy under the penal code but under a special law, PD No. 532 which penalizes piracy in Philippine waters. It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world.”

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 4. PROSPECTIVITY: Article 22 of RPC - If the court in trying an accused, who committed a crime prior to the passage of the law, should give retroactive effect to the law provided that: (1) it is favorable to the accused and (2) the accused is not a habitual delinquent (Article 22). Ex post facto law - Congress in passing a law can insert retroactive effect provision therein subject to the Constitution of ex post facto law. If the retroactive provision of the law has passed the constitutional test on prohibition against ex post facto law, the court must give retroactive effect to this law even if the accused is a habitual delinquent. Nullum crimen poena sine lege – If the law repeals a previous law or provision defining a crime, the applicable principle is not Article 22 of RPC but nullum crimen poena sine lege (There is no crime when there is no law punishing it). Since the intention of the new law is to decriminalize an act punishable by the repealed law, the accused should be acquitted or released if the already convicted, even though he is a habitual delinquent. 5. REPEAL: Decriminalization - Repeal of a penal law deprives the courts of jurisdiction to punish persons charged with a violation of the old penal law prior to its repeal (Sindiong and Pastor, 77 Phil. 1000; Binuya, 61 Phil. 208; U.S. vs. Reyes, 10 Phil. 423; U.S. vs. Academia, 10 Phil. 431; Arizala vs. Court of Appeals, G.R. No. 43633, September 14, 1990; Almuete, et al., G.R. No. L-265, February 27,19 76). The intention of the new law is to decriminalize an act punishable of old law. Thus, person cannot be punished for subversion under RA 1700, which was repealed by RA 7637, even though he is a habitual delinquent. New regulation - Repeal with re-enactment of a penal law does not deprive the courts of jurisdiction to punish persons charged with a violation of the old penal law prior to its repeal. Such repeal even without a saving clause would not destroy criminal liability of the accused (U.S. vs. Cana, 12 Phil. 241). The intention of the new law is not to decriminalize an act punishable of old law but merely to provide new regulation. If the new law is favorable to the accused, who is not a habitual delinquent, it shall be given retroactive effect. Example: “A” was charged for the crime of rape under Article 336 of RPC for raping his minor daughter. However, RA 8353 expressly repealed Article 336 but re-enacted the provision on rape by reclassifying it as a crime against person, redefining it and prescribing a graver penalty for the commission thereof. The repeal of Article 336 does not deprive the courts of jurisdiction to try and punish “A” for rape under Article 336. RA No. 8353 shall not be given retroactive effect since it is not favorable to the accused. 6. MISTAKE OF FACT PRINCIPLE: Requisites: (1) That the acts done would have been lawful had the facts been as the accused believed them to be (2) that the mistake of fact is not due to negligence or unlawful intent of the offender. The Supreme Court in several cases had applied the “mistake of fact” doctrine, which allowed the accused, who committed a crime on a mistaken belief, to enjoy the benefit of the justifying circumstance of self-defense (United States vs. Ah Chong, 15 Phil., 488), defense of person and right (US vs. Bautista, G.R. No. 10678 August 17, 1915), defense of honor (United States vs. Apego, 23 Phil. 391), performance of duty, (People vs. Mamasalaya, G.R. No.L-4911, February 10, 1953), and the exempting circumstance of obedience of an order of superior officer (People vs. Beronilla, G.R. No. L-4445, February 28, 1955). In Ah Chong, the accused, who believed that the victim was a robber and that his life was in danger because of the commencement of unlawful aggression, was acquitted due to mistake of fact doctrine in relation to the rule on self-defense. In Oanis vs. Galanta, the accused, who believed that the sleeping victim is a notorious criminal to be arrested by them, was held guilty of murder for shooting him since the mistake of fact principle in relation to performance of duty is not applicable. Second element is not present since they did not ascertain first his identify despite opportunity. The first element is not likewise present since the killing of victim believed to be a criminal was not necessary consequence of the due performance of duty of the accused as police officers.

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA The gist of the theft is the intent to deprive another of his property in a chattel, either for gain or out of wantonness or malice to deprive another of his right in the thing taken. This cannot be where the taker honestly believes the property is his own or that of another, and that he has a right to take possession of it for himself or for another, for the protection of the latter. However, the belief of the accused of his ownership over the property must be honest and in good faith and not a mere sham or pretense. If the claim is dishonest, a mere pretense, taking the property of another will not protect the taker (Gaviola vs. People, G.R. No. 163927, January 27, 2006, Callejo). This belief of ownership as a defense in theft is in accordance with the mistake of fact doctrine. 7. VOLUNTARINESS – Concurrence of freedom, intelligence and intent makes up the “criminal mind” behind the “criminal act.” Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004). Voluntariness is an element of crime, whether committed by dolo or culpa or punishable under special law. The act to be considered a crime must be committed with freedom and intelligence. In addition to voluntariness, intentional felony must be committed with dolo (malice), culpable felony with culpa, and mala prohibita under special law with intent to perpetrate the act or with specific intent (such as animus possidendi in illegal possession of firearm). Presumption of voluntariness: In the determination of the culpability of every criminal actor, voluntariness is an essential element. Without it, the imputation of criminal responsibility and the imposition of the corresponding penalty cannot be legally sanctioned. The human mind is an entity, and understanding it is not purely an intellectual process but is dependent to a large degree upon emotional and psychological appreciation. A man’s act is presumed voluntary. It is improper to assume the contrary, i.e. that acts were done unconsciously, for the moral and legal presumption is that every person is presumed to be of sound mind, or that freedom and intelligence constitute the normal condition of a person (People vs. Opuran, G.R. Nos. 14767475, March 17, 2004). 8. CRIMINAL INTENT – To be held liable for intentional felony, the offender must commit the act prohibited by RPC with specific criminal intent and general criminal intent. General criminal intent (dolo in Article 3 of RPC) is an element of all crimes but malice is properly applied only to deliberate acts done on purpose and with design. Evil intent must unite with an unlawful act for there to be a felony. A deliberate and unlawful act gives rise to a presumption of malice by intent. On the other hand, specific intent is a definite and actual purpose to accomplish some particular thing. In estafa, the specific intent is to defraud, in homicide intent to kill, in theft intent to gain (Recuerdo vs. People, G.R. No. 168217, June 27, 2006, Callejo). In the US vs. Ah Chong, the accused was acquitted because of mistake of fact principle even though the evidence showed that he attacked the deceased with intent to kill (United States vs. Apego, G.R. No. 7929, November 8, 1912; Dissenting opinion of J. Trent), which was established by the statement of the accused "If you enter the room I will kill you." Article 249 (homicide) should be read in relation to Article 3. The accused was acquitted not because of the absence of intent to kill (specific intent) but by reason of lack of general intent (dolo or malice). 9. PRESUMED MALICE - The general criminal intent (malice) is presumed from the criminal act and in the absence of any general intent is relied upon as a defense, such absence must be proved by the accused (Ah Chong case, the accused was able to rebut the presumption of general criminal intent or malice). Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential 4 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused (Recuerdo vs. People, G.R. No. 168217, June 27, 2006, Callejo). There are other specific intents that are presumed. If a person died due to violence, intent to kill is conclusively presumed. Intent to gain is presumed from taking property without consent of owner. 10. MOTIVE – Motive to prove identity - In a criminal case, the prosecution must prove the elements of crime and the identity of the person who committed it. Proof of motive will not establish the presence of the elements of the crime but it will help the prosecution in showing that the accused committed the crime. The identity of the culprit, which is an essential requisite to cause the conviction of the accused, is usually established through positive identification of the witness. However if there is doubt as to the identity of the culprit, showing motive of the accused for committing the crime will help establish his direct link to the commission of the crime. In People Ferrera, GR NO L-66965, June 18, 1987, En Banc, it was held that motive is essential to conviction in murder cases only when there is doubt as to the identity of the culprit, not when the accused has been positively identified as the assailant. Motive as an element Although motive is not an essential element of a crime, and proving it is just a matter of procedure pertaining to the identification of the accused, there are some cases where it is absolutely necessary to establish a particular motive as a matter of substance because it forms an essential element of the offense. In cases of libel or slander or malicious mischief, prosecution must prove malice on the part of the accused as the true motive of the conduct (People vs. Diva and Diva, GR NO L-22946, April 29, 1968, En Banc). 11. ERROR IN PERSONAE - In case of error in personae, person is criminally responsible for committing an intentional felony although the consequent victim is different from that intended due to mistake of identity. Requisites: In order to make a person criminally liable in case of error in personae, the following requisites must be present: (1) Offender committed an intentional felony; (2) The consequent victim against whom the felony was directed is different from that intended due to mistake of identity. If the penalty for the intended crime is different from that of the committed crime, the court shall impose the penalty for the intended crime or committed crime, whichever is lesser. ABERRATIO ICTUS - In case of aberratio ictus, person is criminally responsible for committing an intentional felony although the consequent victim is different from that intended due to mistake of blow. Requisites: In order to make a person criminally liable in case of aberratio ictus, the following requisites must be present: (1) Offender committed an intentional felony; (2) The consequent victim against whom the felony was directed is different from that intended due to mistake of blow. The crime committed against the intended victim and victim injured due to aberratio ictus shall be made a complex crime (compound crime). The court shall impose the penalty for the most serious crime in its maximum period. PRAETER INTENTIONEM: In case of praeter intentionem, person is criminally responsible for committing an intentional felony although its wrongful consequence is graver than that intended. Requisites: In order to make a person criminally liable under Article 4 (1) in case of praeter intentionem, the following requisites must be present: (1) Offender committed an intentional felony; (2) The wrongful act done, which is graver than that intended, is the direct, natural and logical consequence of the felony committed by the offender. Praeter intentionem may be appreciated as mitigating circumstance of lack of intent to commit so grave a wrong than that committed.

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA a. Evident premeditation- In case of aberatiu ictus and error in personae, the SC did not appreciate evident premeditation since the victim, who was actually killed, is not contemplated in the premeditation of the accused (People vs. Trinidad, G.R. NO. L-38930, June 28, 1988; People vs. Mabug-at, 51 Phil., 967; People vs. Trinidad, G.R. No. L-38930, June 28, 1988). However, praeter intentionem and evident premeditation can be independently appreciated. there is no incompatibility between evident premeditation and no intention to commit so grave a wrong since the latter is based on the state of mind of the offender while the former manner of committing the crime (Reyes; People vs. Enriquez, 58 Phil. 536). b. Treachery - If accused employed means to render the victim defenseless, treachery shall be appreciated even if the killing is due to error in personae (People vs. Del Castillo, Sr., G.R. No. L-32995, April 30, 1984) or aberratio ictus (People vs. Mabug-at, G.R. No. 25459, August 10, 1926, En Banc) or with the circumstance of praeter intentionem (People vs. Cagoco, G.R. No. 38511, October 6, 1933) c. Conspiracy - Conspirators, who conspired to kill a particular parson, are liable for the killing of another person due to error in personae (People vs. Pinto, Jr. and Buenaflor, G.R. No. No. 39519, November 21, 1991). However, conspirator, who never even fired a single shot and whose only participation was to drive their getaway vehicle and to lend his firearm to his back rider so that the latter could finish off the target victim was not found accountable for the injury sustained by the unintended victim was just a star-crossed bystander who was accidentally hit in the process (aberratio ictus) (People vs. Herbias, G.R. No. 112716-17, December 16, 1996; People vs. Flora and Flora, G.R. No. 125909, June 23, 2000). 12. INTENT TO KILL: Intent to kill is an element of homicide and murder. But even if offender had no intent to kill, he would be held just the same liable for homicide or murder if his felonious act is the proximate cause of the death of the latter. Even if there is no intent to kill, offender is liable for homicide or murder if the victim died as a result of the “felonious act” of the former. The offender’s act is considered felonious if it is accompanied with criminal or evil intent such as intent to inflict injury, intent to hide the body of the crime, intent to threaten victim, intent to silence the hold-up victim, or intent to rape. Offender is liable for homicide because it is the natural, direct and logical consequence of an act committed with criminal intent. a. With intent to hide the body of the crime – In People vs. Ortega, Jr., G.R. No. 116736, July 24, 1997 - Ortega stabbed the victim. Garcia assisted Ortega in concealing the body of the victim by throwing the body into the well. Victim died due to drowning. Issue: Is Garcia liable for the death of the victim as principal in homicide even if his intention was not to kill the victim but merely to assist Ortega in concealing his dead body not knowing that the victim was still alive at that time? In assisting Ortega carry the body of victim to the well, Garcia was committing an intentional felony; concealing the body of the crime to prevent its discovery makes him liable as an accessory in homicide. Hence, Garcia should be held liable for the direct, natural and logical consequence of his felonious act of assisting Ortega in hiding the body of the victim. Since proximate cause of death of the victim is the felonious and accessory act of throwing the victim into the well, Garcia should be held liable for the death as principal in homicide. b. With intent to threaten – In US vs. Valdez, G.R. No. 16486, March 22, 1921, En Banc - The accused in rage he moved towards victim with a big knife in hand, threatening to stab him. Victim believing himself in great and immediate peril jumped into the water where he

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA was drowned. The accused was found guilty of homicide. The act of threatening to stab victim constitutes a felony of threat. Hence, accused is liable for the direct, natural and logical consequence of his intentional and felonious act. It was held that: "If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result." d. Intent to inflict injury - Intentional infliction of injury resulting in death of the victim constitutes homicide or murder. In People vs. Pugay, et al., No 74324, November 17, 1988, the deceased, a retardate, and the accused Pugay were friends. Deceased used to run errands for Pugay and at times they slept together. During a town fiesta fair was held in the public plaza. Accused, Pugay and Samson with several companions, who appeared to be drunk, made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the Ferris wheel and poured its contents on the body of the former. Then, the accused Samson set victim on fire making a human torch out of him. Pugay and Samson were stunned when they noticed the deceased burning. Crime committed by Samson: There is no intent to kill. The act of the Accused was merely a part of their fun-making that evening. Accused merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony. Since such felony of physical injuries resulted into a graver offense, he must be held responsible therefor. (Note: The crime is not murder qualified by means of fire because the fire was not use to kill but merely to inflict injury). e. Recklessness – Even if there is no intent to kill and evil intent, offender is liable for culpable felony if the victim died as a result of the recklessness of the former. Crime committed by Pugay: Having taken the can from under the engine of the Ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. The accused is only guilty of homicide through reckless imprudence. f. Accident - If there is no intent to kill, evil intent and recklessness on the part of the accused, he is not liable for his intentional act, which caused the death of the victim. In United States vs. Tanedo (15 Phil. Rep., 196), deceased went with the accused to hunt wild chickens at the forest. While hunting, the accused came upon a wild chicken, and, not seeing deceased about and not knowing or having any reason to believe that he was in that vicinity shot the chicken. The bullet that hit the chicken recoiled and hit the deceased. It was held that accused is not criminally liable. Life was taken by misfortune or accident while in the performance of a lawful act executed with due care and without intention of doing harm. Note: The accused could not have foreseen that the slug after hitting the chicken would recoil and hit deceased. The principle enunciated in Tanedo case will not apply if the place where the accused lawfully discharged his firearm is populated. In People vs. Nocum, G.R. No. L-482, 25 February 1947, En Banc - There was a fistic fight between two persons. Desiring to stop the encounter, accused shouted at the combatants. As these paid him no attention, he drew a .45 caliber pistol and shot twice in the air. The bout continued, however; so he fired another shot at the ground, but unfortunately the bullet ricocheted, and hit an innocent by-stander, resident of the place. Victim died. It was held that: “The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional. It is apparent that defendant 7 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA willfully discharged his gun-for without taking the precautions demanded by the circumstance that the district was populated, and the likelihood that his bullet would glance over the hard pavement of the Manila thoroughfare. Note: The accused should have foreseen that the slug after hitting the pavement would recoil and might hit somebody. 13. PROXIMATE CAUSE: Proximate cause is the primary or moving cause of the death of the victim; it is the cause, which in the natural and continuous sequence unbroken with any “efficient intervening cause” produces death and without which the fatal result could not have happened. It is the cause, which is the nearest in the order of responsible causation (Black’s Law Dictionary). Intervening cause - The direct relation between the intentional felony and death may be broken by efficient intervening cause or an active force which is either a distinct act or fact absolutely foreign from the felonious act of the offender. Lightning that kills the injured victim or tetanus infecting the victim several days after the infliction of injuries, or voluntary immersing the wounds to aggravate the crime committed by accused is an intervening cause. Thus, the accused is liable for physical injuries because of the intervening cause rule. On the other hand, carelessness of the victim, or involuntary removal of the drainage, lack of proper treatment is not an intervening cause. Hence, the accused is liable for the death because of the proximate cause rule. 14. IMPOSSIBLE CRIME: Offender shall be held liable for impossible crime if the following requisites are present: (1) offender performing an act which would have been an offense against person or property; (2) offender performed an act with evil intent; (3) offender did not commit the offense because of the impossibility of its accomplishment or employment of inadequate or ineffectual means; and (4) offender in performing an act is not violating another provision of the law (Luis B. Reyes). a. Intod principle - In Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992 – Outside the house of the victim, accused with intent to kill fired at the bedroom, where the victim is supposed to be sleeping. No one was in the room when the accused fired the shots. No one was hit by the gun fire. The accused were convicted of impossible crime. Accused shoot the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the accused failed to accomplish their end due to its factual impossibility. In the United States, criminal laws are silent regarding impossible crimes; hence where the offense sought to be committed is factually impossible of accomplishment, the offender shall be liable for attempted crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime. In the Philippines, the crime committed is impossible crime if the offense sought to be committed is factually or legally impossible. Killing a dead person is impossible crime because of legal impossibility. Putting the hand inside an empty pocket with intention to steal a wallet is impossible crime because of factual impossibility. b. Raping a dead person - Prior to RA 8353, rape is a crime against chastity. Thus, if a person raped a dead person believing that she was just sleeping, offender could not be held liable for impossible crime (J. Ramon Aquino). In impossible crime the act could have constituted the crime against person or property if its accomplishment was not impossible. Rape is neither a crime against person nor against property. However, RA 8353 reclassifies rape from crime against chastity to crime against person. Hence, an offender for raping a dead person without knowing that she was already dead may now be held liable for impossible crime.

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA c. Committing another crime - “A” discharged shotgun at “B” from a distance of 300 yards; but because of the limited range of the firepower of the shotgun, it would be impossible for “A” to harm “B”. “A” is liable of discharged of firearm and not impossible crime. Where the offender unlawful entered the house and took a watch that turned out to be his own, he is liable for trespass to dwelling and not impossible crime (Criminal Law Conspectus by Justice Florenz Regalado). If the accused administered abortive drugs upon his girlfriend whom he believed to be pregnant, which turned out not to be true, but the woman became ill for more than 30 days, the accused will be liable for serious physical injuries and not impossible crime of abortion (Criminal Law Reviewer by Gregorio). 15. ATTEMPTED AND FRUSTRATED STAGES: In attempted felony, the offender performs directly an overt act, which consists of one or more acts of execution, but not enough to consequently produce the felony. In frustrated felony, the offenders perform all the acts of execution that would produce the felony as a matter of consequence. To determine whether the felony is at the attempted or frustrated stage, acts of execution of execution of a felony must be identified. Example: The acts of execution that would produce homicide or murder are infliction of mortal wounds upon the victim. If the wounds inflicted upon the victim with intent to kill are non-mortal, the crime committed is attempted homicide; if wounds are mortal, the crime committed is frustrated homicide. In attempted felony and frustrated felony, the external acts performed by the offender and the intended felony must have a direct connection; but in an attempted felony, the offender failed to perform all the acts of execution; thus his external acts would “not produce” the felony as a consequence; on the other hand in a frustrated felony, the offender performed all the acts of execution; thus, his external acts “would produce” the felony as a consequence. 16. FRUSTRATED AND CONSUMMATED- In frustrated and consummated felony, the accused performed all acts of execution that would produce the felony as a consequence. If the felony is not produced due to external cause, the crime committed is frustrated felony; if the felony is produced the crime committed is consummated. In frustrated felony, the offender performed all the acts of execution but the felony was not produced as a consequence due to extraneous cause. However, there are felonies, the commission of which has no frustrated stage since the performance of all the acts of execution immediately consummates the felony. In homicide or murder case, once the offender inflicted mortal wound on the victim, all the acts of execution are considered performed. However, what consummates homicide or murder is not the infliction of mortal wounds but the death of the victim as a consequence of the mortal wound inflicted. Thus, if the mortally wounded victim did not die due to medical intervention, homicide or murder is only at the frustrated stage. On the other hand, in rape once the offender sexually penetrate the labia of the vagina of the victim, all the acts of execution are considered performed. But since sexual penetration consummates rape, there are no occasions where the offender performed all the acts of execution and yet the felony was not produced as a consequence. In sum, there is no such thing as frustrated rape since the performance of all the acts of execution immediately consummates rape. 17. ABSOLUTORY CAUSE – In attempted felony and frustrated felony, the offender failed to accomplish his criminal objective by reason of extraneous causes; if the causes are not extraneous, the accused will be absolved from criminal liability.

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA a. Negative Act - In the attempted stage of the execution of a felony, the offender must do a “negative act” to be exempt from criminal liability for attempted felony; since the offender has not yet performed all the acts of execution that would produce the felony as a consequence, he must spontaneously desist from further doing criminal acts that will complete all the acts of execution. Example: “A” with intent to kill shot “B”; “B” sustained non-mortal wound. To be exempt from criminal liability for attempted homicide or murder, “A” must spontaneously desist from further shooting “B” in order not to inflict mortal injury upon him. b. Positive Act – If the offender performs all the acts of execution, which would produce the felony as a consequence, offender is not exempted from liability for frustrated felony even if he voluntary desisted from further doing criminal act. Spontaneous desistance is a defense in attempted felony but not in frustrated felony. In the frustrated stage of the execution of a felony, the offender must do a “positive act” to be exempt from criminal liability; since the offender has performed all the acts of execution that would produce the felony as a consequence, he must do something to prevent, or thwart the production of the felony. Example: “A” with intent to kill shot “B”; “B” sustained mortal wound. To be exempt from criminal liability for frustrated felony, it is not enough that “A” would desist from further shooting “B”. The spontaneous desistance is not a valid defense since “A” had already inflicted mortal wound on “B” that would cause his death as a consequence. Thus, “A” must save the life of “B” by treating his wound. If “B” did not die because “A’s” medical treatment, the latter will not be held liable for frustrated felony because the homicide was not produced due to the will of “A”. c. Not absolutory cause – If the felony is consummated, offender cannot undo what was done. Offender would not be absolved from criminal liability even if he had done something that will mitigate the effects of the felonious act. Example: (1) Restitution of funds malversed immediately and voluntarily made before the case was instituted is not an absolutory cause (Navarro vs. Meneses III, CBD Adm. Case No. 313, January 30, 1998, En Banc). (2) “A” stole chicken under the house of “B” one evening. Realizing that what he did was wrong, “A” returned the chicken to the place under the house of “B”. Since the crime of theft was already consummated, the return of the stolen property does not relieve “A” of criminal responsibility. “A” had already performed all the acts of execution, which produced the crime of theft before he returned the chicken (Reyes). (3) The fact that the accused abandoned victim after six days of captivity does not lessen his criminal culpability much less exempt him from criminal liability for the kidnapping and detention of victim (Baldogo, G.R. No. 128106-07, January 24, 2003, En Banc). 18. BATTERED WOMAN SYNDROME: "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Section 3 of RA No. 9262). Each of the phases of the cycle of violence must be proven to have characterized “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. (People vs. Genosa, G.R. No. 135981, January 15, 2004). The three phases of the Battered Woman Syndrome are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving or nonviolent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004; Answer to the 2010 Bar Examination Questions by UP Law Complex). The essence of this defense of “Battered Woman Syndrome” as a defense is that battered woman, who suffers from physical and psychological or emotional distress, is acting under an irresistible impulse to defend herself although at the time of commission of the crime the batterer-victim had not yet committed unlawful aggression. In Genosa supra, it was held that “it is crucial to the BWS defense is the 10 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA state of mind of the battered woman at the time of the offense. She must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.” That is why even in the absence of “actual aggression” or any other element of selfdefense, a woman, who is found to be suffering from battered woman syndrome is not criminally liable for killing her husband. 19. STATE OF NECESSITY - The justifying circumstance of avoidance of greater evil is also called state of necessity. The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. According to Groizard, rights under the state of necessity rule may be prejudiced by three general classes of acts, namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious, imprudent nor negligent but nevertheless cause damages (People vs. Retubado, G.R. No. 124058, December 10, 2003, Callejo). Intentional act - Ty vs. People, G.R. No. 149275, September 27, 2004, Tinga – Accused was charged for violation of BP Blg. 22 for issuance of bounced checks. According to her, she was compelled to issue the checks - a condition the hospital allegedly demanded of her before her mother could be discharged - for fear that her mother’s health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. It was held: For the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by accused own failure to pay her mother’s hospital bills. Negligent or reckless act – If the recklessness brought about the state of necessity, the reckless person who performed an act to avoid a greater evil shall be held liable for the crime of imprudence or negligence under Article 365. Act causing damage - The accused does not commit a crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the person/persons benefited by the act of the accused. Thus, if the accused reap benefits from his act, he would be held civilly liable on the basis of the principle of unjust enrichment (People vs. Retubado, G.R. No. 124058, December 10, 2003, Callejo). 20. PARTICIPATION - Chief actor - Criminal or chief actor is the person who actually committed the crime. He is the one who committed or omitted the act, which causes the criminal result. He directly perpetrated the acts, which constitute the crime. With or without conspiracy, the chief actor is a principal by direct participation. Criminal participator - Criminal participator is the offender who participated in committing a crime by indispensable or dispensable act. He performed an act, which is not constitutive of felony but intended to give moral or material aid to the chief actor. (1) With conspiracy - If there is conspiracy, the criminal participator or cooperator is a principal by direct participation. The act of the chief actor is considered the act of the criminal participator. (2) Without conspiracy - If there is no conspiracy, criminal participator may be held liable as principal by indispensable cooperation, accomplice or accessory depending upon the nature and time of participation. A criminal participator may participate in the commission of the crime by previous, simultaneous and/or subsequent acts. (a) Previous or simultaneous acts – The criminal participator by previous or simultaneous acts is liable either as principal by indispensable cooperation or

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA accomplice. If the cooperation is indispensable, the participator is a principal by indispensable cooperation; if dispensable an accomplice. (b) Subsequent acts – The criminal participator by subsequent acts is liable as an accessory. An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with knowledge of the commission of the crime, he subsequently takes part by any of the three modes under Article 19. The liability of accessory and principal should also be considered as quasi-collective. It is quasi-collective in the sense that the principal and the accessory are liable for the felony committed but the penalty for the latter is two degrees lower than that for the former. 21. FENCING - The essential elements of the crime of fencing under PD No. 1612 are as follows: (1) A crime of robbery or theft has been committed; (2) The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft (or carnapping but not malversation or estafa), buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) There is on the part of the accused, intent to gain for himself or for another (Francisco vs. People, G.R. No. 146584, July 12, 2004, Callejo). a. Proving robbery or theft – Commission of robbery or theft by the principal as an element of fencing should be proven beyond reasonable doubt to convict the fencer. One may not be convicted of the crime of fencing if the complainant did not lodge a criminal complaint against the principal in the crime of theft. This will create doubt if theft was really committed (Tan vs. People, G.R. No. 134298, August 26, 1999) Failure to show finality of conviction of theft against the principal is fatal to prosecution for fencing. In Francisco vs. People, G.R. No. 146584, July 12, 2004, Callejo - The decision of the trial court convicting the principal of theft does not constitute proof against the accused for the crime of fencing, that the principal had, indeed, stolen the jewelry. There is no showing that the said decision was already final and executory when the trial court rendered its decision in the fencing case. Accused was acquitted. a. Presumption: Section 6 of PD No. 1612 provides: “Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.”Possession is not limited to actual manual control of the offender over the stolen property but extends to power and dominion over it. The accessory in theft should materially benefit from it. Riding in a stolen vehicle is “not profiting” within the contemplation of Article 17 of the Revised Penal Code since it does not improve his economic position. Profiting is not synonymous to intent to gain as an element of theft (Gregorio). However, in violation of PD No. 1612, use of stolen property gives rise to the presumption of fencing. Hence, the user may be held liable for fencing even though he did not materially benefit from crime of theft. The presumption of theft is disputable. The presumption of fencing may be overcome by showing proof that accused bought the item from a licensed dealer of second-hand items (Hizon-Pamintuan vs. People, G.R. No. 11414, July 11, 1994) or by showing official receipts

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA covering the purchases of property, which is the subject of fencing (D. M Consunji, Inc. vs. Esguerra, G.R. No. 118590, July 30, 1996). b. Recently stolen property – If suspect is found in possession of recently stolen property, he should be charged as principal in the crime of theft or robbery. Under Section 3 (j), Rule 131, a person found in possession of a thing taken in the doing of recently wrongful act is the taker and the doer of the whole act. Settled is the rule that unexplained possession of recently stolen property is prima facie evidence of guilt of the crime of theft ( US vs. Ungal, 37 Phil., 835). If the subject property is not recently stolen, the presumption under Section 3 (j), Rule 131 will not arise. However, the possessor is still presumed to have violated PD No. 1612 even if the property being possessed was not recently stolen. Under the law, mere possession of stolen property gives rise to the presumption of fencing. 22. OBSTRUCTION OF JUSTICE – Obstruction of justice under PD No. 1829 is committed by any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by (1) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; (2) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; a. Commission of crime, not an element - To be held liable as accessory under the Revised Penal Code, it is required that the crime was committed by the principal. To be held liable for obstruction of justice, it is not necessary that the crime was committed by a criminal suspect. Example: “A” committed suicide. To make it appear that “B” murdered “A, “C” placed the gun used in perpetrating suicide inside the bag of “B”. “C” committed the crime of obstruction of justice for having obstructed the investigation of a criminal case involving the death of “A”. “C” cannot be held liable as accessory because murder was not really committed. b. Knowledge - An accessory under Revised Penal Code must have knowledge of the commission of the crime by the principal. To commit obstruction of justice, what is important is not knowledge of the commission of a crime but awareness of an ongoing or impending investigation and prosecution of a criminal case. In fact, even though the suspect did not commit a crime, obstruction of justice is committed if he knowingly obstructs, impedes, or frustrates the said investigation and prosecution. c. Obstructing criminal investigation or prosecution - Public officer, who destroyed dangerous drugs as evidence for monetary consideration, is liable for obstruction of justice in addition to graft and corruption and direct bribery (2005 Bar Exam) If a respondent in a preliminary investigation altered the allegation in the complaintaffidavit as to the date of criminal incident to make it appear that the crime, with which he was charged, had prescribed, the alteration is constitutive of the crime of falsification of document under Article 172 of the Revised Penal Code and obstruction of justice under PD No. 1829. d. Principal of the crime - “A” and “B” killed “X”. After the slaughter, “A” and “B” burned the dead body of “X” in the forest to prevent its discovery. Can “A” and “B” be charged as accessory of the crime to murder or obstruction of justice? “A” and “B” are principals by direct

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA participation in the crime of murder qualified by employment of means to afford impunity. Hence, they cannot be charged as accessories. Under the Revised Penal Code, accessories must not have participated in the commission of the crime as principals. However, in addition to murder, they can be charged with the crime of obstruction of justice for destroying an object to impair its availability as evidence in a case. Under PD No. 1829, it is not required that the offenders must not have participated as principals. e. Suspicion - An accessory under Article 19 (3) of the Revised Penal Code must have knowledge of the commission of the crime by the principal. Entertaining suspicion is not itself proof of knowledge that a crime has been committed. “Knowledge” and “suspicion” are not synonymous. The word suspicion is defined as being the imagination of the existence of something without proof, or upon very slight evidence or upon no evidence at all (Reyes). On the other hand, the offender may violate Section 1 (c) of PD No. 1829 even though he has no knowledge of the commission of the crime as long as he has reasonable ground to believe or suspects that the person he assisted has committed a crime. In some, mere suspicion is enough to establish the second element of the offense. d. Preventing an illegal arrest – Harboring or concealing a criminal suspect in order to prevent a lawful warrantless arrest or the implementation of a warrant of arrest constitutes obstruction of justice. However, harboring or concealing a criminal suspect to prevent an illegal arrest is not a crime. The term “arrest” in Section 1 (c) of PD No. 1829 contemplates a lawful arrest (Posadas vs. the Hon. Ombudsman, G.R. No. 131492, September 29, 2000) e. Accessory – To make a person liable as accessory under the Revised Penal Code, it is required that he is a public officer, who acted with abuse of his public functions, or that the person assisted is guilty as principal in treason, parricide, murder, or an attempt to take the life of the Chief Executive or a principal, who is known to be habitually guilty of some other crime. This requirement is not applicable if the accused is charged with obstruction of justice. f. No exempting circumstance - Accessories are exempt from criminal liability if the principal merely committed a light felony (Article 16 of the Revised Penal Code). Accessories of the second or third kind are exempt also from criminal responsibility if they are related to the criminal actor (Article 20 of the Code). However, if the accessories of the crime were charged with the crime of obstruction of justice, they cannot claim criminal exemption under the Revised Penal Code. PD No. 1829 has no provision on criminal exemption. 23. SERVICE OF MULTIPLE SENTENCES: Simultaneous service - When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. Thus, convict could serve simultaneously arresto mayor and fine, prision correccional and perpetual absolute disqualification, or reclusion perpetua and civil interdiction. In sum, while lingering in prison, convict could pay fine, return the property confiscated, be disallowed to cast his vote or to act function as a public officer. In Rodriguez vs. Director of Prisons, G.R. No. L-35386, September 28, 1972, En Banc - Penalties which could be served simultaneously with other penalties, are perpetual or temporary absolute disqualification, perpetual or temporary special disqualification, public censure, suspension from public office and other accessory penalties. There are only two modes of serving two or more (multiple) penalties: simultaneously or successively. Successive service – When the culprit has to serve two or more penalties, he shall serve them successively if the nature of the penalties will not permit simultaneous service. Convict must serve multiple penalties successively: (1) where the penalties to be served are destierro and imprisonment; and (2)

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA where the penalties to be served are imprisonment. However, the successive service of sentences is subject to the three-fold rule and 40-year limitation rule. a. Three-fold rule - The maximum period of the imprisonment that convict must suffer in serving multiple penalties must not exceed threefold the length of time corresponding to the most severe of the penalties imposed upon him. “A” was sentenced to suffer penalty of 7 years of prision mayor for serious physical injuries, 6 years of prision correccional for qualified less serious physical injuries, 5 years of prision correccional for robbery and 5 years of prison correccional for theft. The total duration of the penalties imposed on him is 23 years. The most severe penalty imposed on him is 7 years of prision mayor. Thus, threefold the length of time corresponding to the most severe of the penalties is 21 years. “A” will be imprisoned for 21 years because of the three-fold rule. b. Forty-year limitation rule – The maximum period of the imprisonment that convict must suffer in serving multiple penalties must not exceed forty years. “A” was sentenced to suffer three penalties of 15 years of reclusion temporal for three counts of homicide and the penalty of 10 years of prision mayor for serious physical injuries. The total duration of the penalties imposed on him is 55 years. The most severe penalty imposed on him, is 15 years of reclusion temporal. Thus, threefold the length of time corresponding to the most severe of the penalties is 45 years. “A” will be imprisoned for 40 years because of the forty year limitation rule. 24. DESTIERRO: Destierro is a divisible penalty, which has a range from 6 months and 1 day to 6 years. It is a penalty. However, destierro imposed upon a person, who killed his spouse or her paramour, in the act of having sexual intercourse, is not a penalty but a measure designed to protect the offender against possible retaliation from relatives of the victim. However, it is only proper to award civil indemnity to the heirs of the victim. Death under exceptional circumstance is in the nature of an exempting circumstance that excuses the accused from criminal liability but not his civil liability. 25. GRADUATION - Under these provisions, the fixed penalty shall be graduated by one or more degrees on the basis of the following factors: FACTORS NUMBER OF DEGREES Stage of Execution Frustrated stage ---------------------------------------------------- 1 Attempted stage --------------------------------------------------- 2 Except: Frustrated homicide, parricide, murder ------ 1 or 2 Attempted homicide, parricide, murder -----1 or 2 Nature of Participation Accomplice -------------------------------------------------------- 1 Accessory ---------------------------------------------------------- 2 Privileged Mitigating Circumstance Minority -----------------------------------------------------------------1 Incomplete justification or exemption ---------------------------1 or 2 (Except: Accident) 26. COMPOSITION OF GRADUTED PENALTY: The composition of a graduated penalty will depend on the composition of the penalty fixed by law.

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA General Rule: Single Penalty - Graduated penalty is generally a single penalty. Example – If the fixed penalty is death, the penalty next lower in degree is reclusion perpetua; if the fixed penalty is reclusion perpetua, the penalty next lower in degree is reclusion temporal; if the fixed penalty is reclusion perpetua to death, the penalty next lower in degree is also reclusion temporal. The graduated penalty of reclusion temporal is a single penalty. First exception: Fixed penalty in period – If the penalty is composed of single period, the graduated penalty must also be composed of single period. If the penalty prescribed by law is arresto mayor in its maximum period, the penalty next lower in degree is arresto mayor in its medium period. If the penalty is composed of two periods, the graduated penalty must also be composed of two periods. If the penalty prescribed by law arresto mayor in its maximum period to prision correctional in its minimum period, the penalty next lower in degree is arresto mayor in its minimum and medium periods. If the penalty is composed of three periods, the graduated penalty must also be composed of three periods. First Exception: Fixed penalty with period and penalty components – If the fixed penalty is composed of period component and penalty component, the graduated penalty must be composed of three period components. Example: The penalty prescribed by law is “reclusion temporal in its maximum period to reclusion perpetua.” This penalty has a period component and a full penalty. Hence, one degree lower than this penalty must composed of three periods, and that is: “Prision mayor in its maximum period to reclusion temporal in its medium period” 27. SPECIAL MITIGATING CIRCUMSTANCE: Under Article 64 (5), the presence of two or more mitigating circumstances will graduate the “divisible penalty prescribed by law” to one degree lower. This is called special mitigating circumstance. However, the appreciation of this circumstance is subject to two conditions: (1) the penalty prescribed by law must be divisible; and (2) there must be no aggravating circumstance. In People vs. Takbobo, G.R. No. No. 102984, June 30, 1993 - Accused was found guilty of parricide punishable by the penalty of reclusion perpetua to death. Applying Article 63, when the penalty is composed of two indivisible penalties, the penalty cannot be lowered by one degree, no matter how many mitigating circumstances are present. The rule on special mitigating circumstance is found in Article 64 (5) which provides the "rules for the application of penalties which contain three periods," meaning, divisible penalties. Article 64 (5) is inapplicable. Thus, the rule applicable in said case is found in Article 63, and not in Article 64. If there are two mitigating circumstances, the penalty prescribed law shall graduated to one degree lower, and the graduated penalty shall be applied in it medium period. If there are three mitigating circumstances taken as special mitigating, the penalty prescribed law shall graduated to one degree lower, and the graduated penalty shall be applied in it minimum period. Reason: The two mitigating circumstances were taken to constitute special mitigating circumstance; while the remaining mitigating circumstance was used to apply the graduated penalty in its minimum period. 28. FIXING THE PROPER IMPOSSABLE PERIOD: 1 aggravating circumstance No modifying circumstance 1 mitigating circumstance maximum period medium period minimum period

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 2 or more aggravating circumstances maximum period 2 or more mitigating circumstance minimum period Combination of aggravating and mitigating circumstances, apply the off-set rule 1 or more remaining aggravating circumstances No remaining modifying circumstance 1 or more remaining mitigating circumstances maximum period medium period minimum period

Note: (1) Special mitigating circumstance is not appreciable even if there are two or more remaining mitigating circumstances. (2) Off-set rule is not applicable if the aggravating circumstances are special aggravating such as syndicated-organized crime group, taken advantage of public position, quasi-recidivism, use of unlicensed firearm in homicide or murder and under the influence of dangerous drugs. If any of these circumstances is present, the penalty shall be applied in its maximum period regardless of the presence of mitigating circumstances.

39. APPLICABILITY OF ISLAW: Problem: The penalty prescribed by a special law is not more than 3 years but not less than 6 months. ISLAW is not applicable if the penalty imposed by the judge in accordance with the law does not exceed 1 year. (1) The judge cannot impose an indeterminate penalty of 6 months to 10 months because ISLAW is not applicable. The penalty does not exceed one year. The judge should have imposed a straight penalty of 10 months. (3) The judge cannot impose straight penalty of 2 years because ISLAW is applicable. The penalty exceeds one year. Since ISLAW is applicable the judge should have imposed an indeterminate penalty instead of a straight penalty. This is mandatory (2005 Bar Exam). 40. CONTINUED CRIME - In order that continuous crime may exist, there should be: (1) plurality of acts performed separately during a period of time; (2) unity of criminal intent and purpose and (3) unity of penal provision infringed upon or violated (Santiago vs. Garchitorena , GR NO. 109266, December 2, 1993). a. Single occassion - In People vs. Tumlos, G.R. No. 46428, April 13, 1939, En Banc The theft of the thirteen cows owned by six owners involved thirteen (13) acts of taking. However, the acts of taking took place at the same time and in the same place; consequently, accused performed but one act. The intention was likewise one, namely, to take for the purpose of appropriating or selling the thirteen cows which he found grazing in the same place. The fact that eight of said cows pertained to one owner and five to another does not make him criminally liable for as many crimes as there are owners, for the reason that in such case neither the intention nor the criminal act is susceptible of division. b. General plan - In People vs. Dela Cruz, G.R. No. L-1745, May 23, 1950, it was held that ransacking several houses located within the vicinity of a sugar mill while two of the bandits guarded the victims with guns leveled at them is a continued crime of robbery. Several acts of robbery were made pursuant to general plan to despoil all those in the said place, which is an indicative of a single criminal design. c. Foreknowledge doctrine - In Gamboa vs. CA, G.R. No. L-41054, November 28, 1975 - Accused cannot be held to have entertained continuously the same criminal intent in making the first abstraction on October 2, 1972 for the subsequent abstractions on the following days and months until December 30, 1972, for the simple reason that he was not possessed of any fore-knowledge of any deposit by any customer on any day or occasion and

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA which would pass on to his possession and control. At most, his intent to misappropriate may arise only when he comes in possession of the deposits on each business day but not in future, since petitioner company operates only on a day-to-day transaction. As a result, there could be as many acts of misappropriation as there are times the private respondent abstracted and/or diverted the deposits to his own personal use and benefit (People vs. Dichupa, G.R. No. L-16943, October 28, 1961). 41. DOCTRINE OF ABSORPTION - Crime is absorbed if it is a mere incident in the commission of another crime. In the case of U.S vs. Sevilla (1 Phil. 143), the accused, who struck the offended parties while simultaneously threatening to kill them if they would not return him the jewelry they have lost, was held liable for slight physical injuries. The threat was considered as part of the assault. In People vs. Yebra (109 Phil. 613), it was held that defamatory statement uttered in the course of committing the crime of threat is not a separate crime. The defamation was just a part of the crime of threat. The letter containing the libelous remarks is more threatening than libelous; the intent to threaten is the principal aim and object of the letter. The libelous remarks are merely preparatory remarks culminating in the final threat. 42. PLANTING OF EVIDENCE - As a general rule, planting of evidence (such as unlicensed firearm) to incriminate an innocent person constitutes the crime of incriminating an innocent person under Article 363 of RPC. However, if the incriminatory evidence planted is dangerous drugs or unauthorized explosives, the crime committed is planting of evidence under RA 9165 for the dangerous drug and PD 1866 as amended by RA 9516 for the explosive. Unlike planting of explosive, PD 1866 has no provision punishing planting of unlicensed firearm. Hence, plating of unlicensed firearm should be punished as incriminating innocent person under RPC. 43. POSSESION OF UNLICENSED FIREARM AND OTHER CRIME - Political crime Under PD No. 1866, if the commission of illegal possession of unlicensed firearm is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat (People v. Rodriguez, 107 Phil. 659). Homicide or murder – If the offender killed a person with the use of unlicensed firearm, he is liable for homicide or murder aggravated by use of unlicensed firearm (People vs. Bergante, G.R. No. 120369-70, February 27, 1998). The law in effect has explicitly decriminalized illegal possession of firearms. Nullum crimen, nulla poena sine lege (People vs. Presiding Judge of RTC, Muntinlupa, G.R. No. 151005, June 8, 2004). Commission of other crimes: If the offender committed illegal possession of firearm and crime other than murder, homicide, rebellion, sedition, or coup d’etat, the offender cannot be prosecuted separately for illegal possession of firearm. RA 8294 prescribes a penalty for possession of unlicensed firearm “provided, that no other crime was committed.” A simple reading of PD 1866 shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms 44. POSSESION OF UNLICENSED FIREARM AND OTHER CRIME: Under PD No. 1866 as amended by RA No. 9516, if possession of explosives is a necessary means for committing any of the crimes, or is in furtherance of, incident to, in connection with, by reason of, or on occasion of any of the crimes, the penalty of reclusion perpetua shall imposed. Hence, commission of other crime shall be considered as a qualifying circumstance that will require the imposition of reclusion perpetua for illegal possession of explosives. The offender can be held

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA liable with either qualified illegal possession of explosive or the other crime committed such as murder; however, the offender cannot be held liable for both since Section 3-D of PD No. 1866 has adopted the rule on double jeopardy. 45. PRESCRIPTION - The crime of falsification of a public document involving a deed of sale which was registered with the Registry of Deeds, the rule on constructive notice can be applied in the construction of Article 91. Hence, the prescriptive period of the crime shall have to be reckoned from the time the notarized deed of sale was recorded in the Registry of Deeds (People vs. Reyes, G.R. No. 74226, July 27, 1989). Constructive notice rule is not applicable to registration of bigamous marriage in the Office of the Civil Registrar. Furthermore, P.D. 1529, which governed registration of document involving real property, specifically provides the rule on constructive notice. On the other hand, Act No. 3753 or the Family Code, which governed registration of marriage do not provide rule on constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14, 1994); hence the period of prescription commences to run on the date of actual discovery of the bigamous marriage. a. Actionable crime - As a rule, period of prescription commence to run from the date of discovery of its commission. However, if the crime is not yet actionable at the time of its commission, period of prescription will commence to run from the time it becomes actionable. In false testimony, the crime was committed at the time the accused falsely testified in court. However, the period of prescription for false testimony commences to run from the date of the finality of judgment of a case in which the offender testified falsely. Prior to the date of finality, the crime is not yet actionable (People vs. Maneja, G.R. No. 47684, June 10, 1941). In violation of BP Blg. 22, the crime is consummated upon the dishonor of the check by the drawee bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001). However, the period of prescription for such crime commences to run from the date of the expiration of the five-day period from receipt of notice of dishonor by the drawer. Prior to that date, the crime is not yet actionable since the offender can still avert criminal prosecution by satisfying the amount of the check or making arrangement for its payment within five day grace period. Moreover, the running of prescription for crime punishable under special law shall be interrupted upon filing of complaint with prosecutor office for preliminary investigation. It would be absurd to consider the prescriptive period for crime under BP Blg. 22 as already running even prior to the expiration of the grace period despite the fact that the complainant could not cause its interruption by filing a complaint for preliminary investigation since it is not yet actionable (See: People vs. Pangilinan, G.R. No. 152662, June 13, 2012). b. Interruption: Filling of information or complaint in court for trial or complaint in the prosecutor’s office for preliminary investigation suspends the running of the prescription of felony (People vs Reodica vs. CA, GR NO. 125066, July 8, 1998). Likewise, the running of prescription for crime punishable under special law shall be interrupted upon filing of complaint with prosecutor office for preliminary investigation (Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008) 46. MARRIAGE IN RAPE – Marriage between the offended party and the offender in seduction, abduction, acts of lasciviousness extinguishes the criminal liability of the latter and his co-principals, accomplice and accessories (Articles 89 and 344 of RPC). But marriage

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA between the offended part and offender in rape will only extinguishes criminal liability of the latter. Article 266-C did not expressly made applicable the extinction of criminal action and penalty in rape case by reason of marriage to co-principals, accomplice and accessories. 47. PROBATION – Probation distinguished from parole and pardon – (1) Grant of probation is judicial while that of parole and pardon is executive. (2) Probation and parole are suspension sentence while pardon is remission of penalty. (3) Offender can only apply for probation within the period of perfecting an appeal; offender is eligible for pardon after conviction by final judgment; offender is eligible for parole after serving the minimum of the indeterminate penalty. (4) Offender, who was sentenced to suffer a penalty of more than 6 years of imprisonment, is disqualified to apply for probation. Offender, who was sentence to suffer reclusion perpetua or death penalty, is not qualified for parole. However, the President can pardon offender even if the penalty imposed upon him is reclusion perpetua or death penalty. a. Non-probationable offense - The accused, who was convicted by the lower court of a non-probationable offense (frustrated homicide), but on appeal was found guilty of a probationable offense (attempted homicide), may apply for probation upon remand of the case to the RTC because of the following reasons: (1) The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions; (2) If the accused will not be allowed to apply for probation, he will be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation; (3) While it is true that probation is a mere privilege, the accused has the right to apply for that privilege; (4) It is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to accused: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court (Colinares vs. People, G.R. No. 182748, December 13, 2011). b. Right of possessor of dangerous drugs to apply for probation - The rule under Section 24 of RA No. 9165, which disqualifies drug traffickers and pushers for applying for probations, does not extend to possessor of dangerous drugs. In Padua vs. People, G.R. No. 168546, July 23, 2008, it was held that: “The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers, like Padua, are categorically disqualified from availing the law on probation, youthful drug dependents, users and possessors alike, are given the chance to mend their ways.” c. Right of child to apply for probation despite appeal - Section 4 of PD No. 968 provides: “Application for probation must be filed within the period of perfecting an appeal and no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.” However, RA No. 9344 has expressly amended Section 4 of PD No. 968 and provides that a child in conflict with the law can apply for probation at any time. Section 42 of RA No. 9344 provides: “The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lie of service of his/her sentence taking into account the best interest to the child. For this purpose, Section 4 of Presidential Degree No. 968, otherwise known as 20 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA the “Probation Law of 1976”, is hereby amended accordingly.” The phrase “at any time” mentioned in Section 42 means the child in conflict with the law may file application for probation even beyond the period of perfecting an appeal and even if the child has perfected the appeal from the judgment of conviction. 48. PLEA BARGAINING IN DRUGS CASE - 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. 49. NOTICE OF DISHONOR IN ESTAFA CASE - The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. It is criminal fraud or deceit in the issuance of a check which is made punishable under the RPC, and not the non-payment of a debt. The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act. However deceit is presumed if the drawer of the check fails to deposit the amount needed to cover his check within three days from receipt of notice of dishonor. a. No notice of dishonor - If there is no notice of dishonor, the prosecution can still prove the existence of deceit such as in a case where the accused knows that his checking account is closed. The receipt by the drawer of the notice of dishonor is not an element of the estafa through bouncing check. b. With notice of dishonor - If there is notice of dishonor, the presumption of deceit can still be rebutted by: (1) proof that the check is issued in payment of a pre-existing obligation or (1) evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtor’s offer to arrange a payment scheme with his creditor or making full payment of the entire amount of the dishonored checks. However, simply empty promise to pay complainant the value of the bum checks issued in order to induce her to part with her property in favor of accused is not an evidence of good faith that will rebut the presumption of deceit. (See: People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, Corona; Lopez vs. People, G.R. No. 166810, June 26, 2008, De Castro; Recuerdo vs. People, G.R. No. 168217, June 27, 2006, Callejo) 50. NOTICE OF DISHONOR IN BP BLG. 22 - Notice of dishonor of a check to the maker in BP Blg. 22 must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough. If the maker or drawer pays, or makes arrangements with the drawee bank for the payment of the amount due within the five-day period from notice of the dishonor given to the drawer, it is a complete defense; the accused may no longer be indicted for violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the payment of the amount due as a complete defense. Assuming that the accused had knowledge that he had insufficient funds in the drawee bank when he issued the questioned checks, he could still have paid the checks or made arrangements with the drawee bank for the payment of the said checks if he had been duly notified of their dishonor. In not sending a notice or letter of dishonor to the petitioner as required by law, the complaint deprived the accused of his right to avoid prosecution for violation of B.P. Blg. 22 (Sia vs. G.R. No. 149695. April 28, 2004, Callejo).

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 51. FULL PAYMENT OF AMOUNT OF DISHONORED CHECKS - The full payment of the amount appearing in the check within five banking days from notice of dishonor is a “complete defense” (Lina Lim Lao v. CA, 274 SCRA 572) regardless of the strength of the evidence offered by the prosecution (Meriz vs. People, G.R. No. 134498, November 13, 2001). The accused has the burden to establish by convincing, satisfactory and credible evidence that payment was made within the grace period (Arceo vs. People, G.R. No. 142641, July 17, 2006). Exceptions: In Griffith vs. Hon. Court of Appeals, G.R. No. 129764, March 12, 2002 and in Cruz vs. Cruz, G.R. No. 154128, February 8, 2007 considered full payment of the check after the expiration of grace period of five days from receipt of notice of dishonor. The SC in these cases applied the “utilitarian doctrine” instead of the mala prohibita principle. (1) In Griffith, since the creditor have collected already more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, holding the debtor’s president to answer for a criminal offense under B.P. 22 two years after said collection, is no longer tenable nor justified by law or equitable considerations. (2) In Cruz vs. Cruz, petitioner made full payment of the dishonored check after eleven (11) days from receipt of notice of dishonor. Respondent filed the complaint almost six (6) months after the said payment. 52. INDETERMINATE OFFENSE DOCTRINE – In People vs. Lamahang, G.R. No. 43530, August 3, 1935, En Banc - Accused who was caught in the act of making an opening with an iron bar on the wall of a store was held guilty of attempted trespassing and not attempted robbery. The act of making an opening on the wall of the store is an overt act of trespassing since it reveals an evident intention to enter by means of force said store against the will of its owner. However, it is not an overt act of robbery since the intention of the accused once he succeeded in entering the store is not determinate; it is subject to different interpretations. His final objective could be to rob, to cause physical injury to its occupants, or to commit any other offense. In sum, the crime the he intended to commit inside the store is indeterminate, and thus, an attempt to commit it is not punishable as attempted felony. In People vs. Crisostomo, et al., G.R. No. L-19034, February 17 1923 – The accused dragged the victim to a rice field. Fortunately, she was saved from her captors. It was held that the purpose of the accused in taking away the offended party could be to injure or affront her or to compel her through force to marry one of the accused. Thus, the acts are not constitutive of attempted coercion. Note: The accused were found guilty of illegal detention. Taking the victim reveals the evident intention of the accused to deprive the liberty of the latter, which is the mens rea in illegal detention. In U.S. vs. Simeon, G.R. No. 1603, April 15, 1904 - Raising a bolo and hacking the victim with it are acts of execution in homicide or murder. Such acts together with other circumstance may reveal intent to kill. However, raising bolo alone is susceptible to different interpretation. The intention of the offender may either to kill the victim or merely to threaten him. Since doubt should be interpreted in favor of the accused, such act should be considered to have been made with intent to threaten the victim. Thus, the crime commit is merely threat and not attempted homicide; 54. CREDIT OF THE PREVENTIVE IMPRISONMENT OF CHILD - Under Article 29 of RPC, a convicted recidivist is not entitled to a full or 4/5 credit of his preventive imprisonment. However, if the convict is a child, the applicable rule for crediting the period of commitment and detention is not Article 29 of RPC but Section 41, RA 9344. Under the said provision, the full

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA time spent in actual commitment and detention of juvenile delinquent shall be credited in the services of his sentence. 55. CONSPIRACY IN SPECIAL LAWS - B.P. Blg. 22 does not expressly proscribe the supplementary application of the provisions RPC including the rule on conspiracy. Hence, such rule may be applied supplementarily. Thus, a non-issuer of bum check can be held liable for violation of BP Blg. 22 on the basis of conspiracy. (Ladonga vs. People, G.R. No. 141066, February 17, 2005). The principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as mother-in-law), who has no marital, sexual or dating relationship with the victim, can be held liable for violence against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852, September 30, 2008) 56. INDEPENDENT APPRECIATION - The circumstances of disregard of sex, age or rank should be taken singly or together. But the circumstance of dwelling should be considered independently from the circumstance of disregard of age, sex and rank since these circumstances signify different concepts. In the latter, the disrespect shown by offender pertains to the person of the offended due to her rank, age and sex. In the former, the disrespect pertains to the dwelling of the offended party due to the sanctity of privacy which the law accords it. In People vs. Puno, G.R. No. L-33211, June 29, 1981, En Banc - Disregard of rank and dwelling were appreciated independently. 57. ROBBERY WITH HOMICIDE: Case law has it that whenever homicide 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 although they did not take part in the homicide, unless it appears that they endeavored to prevent the homicide (People vs. Gonzales, G.R. No. 140756, April 4, 2003, Callejo); Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed to (a) facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery (People vs. Hernandez, G.R. No. 139697. June 15, 2004, Callejo). a. Intent to rob - A conviction for robbery with homicide requires certitude that the robbery is the main purpose and objective of the malefactor and the killing is merely incidental to the robbery. The animo lucrandi must proceed the killing. If the original design does not comprehend robbery, but robbery follows the homicide either as an afterthought or merely as an incident of the homicide, then the malefactor is guilty of two separate crimes, that of homicide or murder and robbery, and not of the special complex crime of robbery with homicide, a single and indivisible offense. It is the intent of the actor to rob which supplies the connection between the homicide and the robbery necessary to constitute the complex crime of robbery with homicide (People vs. Daniela, G.R. No. 139230, April 24, 2003, Callejo). b. Intent to kill and rob - However, the law does not require that the sole motive of the malefactor is robbery and commits homicide by reason or on the occasion thereof. In one case,

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA it was ruled that even if the malefactor intends to kill and rob another, it does not preclude his conviction for the special complex crime of robbery with homicide. The fact that the intent of the felons was tempered with a desire also to avenge grievances against the victim killed, does not negate the conviction of the accused and punishment for robbery with homicide (People vs. Daniela, G.R. No. 139230, April 24, 2003, Callejo). c. Robbing, killing and raping - A conviction for robbery with homicide is proper even if the homicide is committed before, during or after the commission of the robbery. The homicide may be committed by the actor at the spur of the moment or by mere accident. Even if two or more persons are killed and a woman is raped and physical injuries are inflicted on another, on the occasion or by reason of robbery, there is only one special complex crime of robbery with homicide. What is primordial is the result obtained without reference or distinction as to the circumstances, cause, modes or persons intervening in the commission of the crime (People vs. Daniela, G.R. No. 139230, April 24, 2003, Callejo). d. One of the robbers is the victim of homicide - It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word “homicide” is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide (People vs. Laog, G.R. No. 178321, October 5, 2011, Villarama). 58. RAPE THROUGH FRAUDELENT MACHINATION - In U.S. vs. Hernandez, 29 Phil. 109, accused Hernandez, who seduced a 15-year-old girl to live with him by procuring the performance of a fictitious marriage ceremony with the help of Bautista, who pretended to be a Protestant minister, was held liable for the complex crime proper of simple seduction (Art. 338) through usurpation of official function (Art. 177). Usurping the function of a priest to solemnize marriage is a necessary means to seduce a minor. Comment: The case of Hernandez was decided prior to the effectivity of the RPC. At that time, a religious official such as a bishop is a person in authority within the purview of the Old Penal Code (Smith, G.R. No. 14057, January 22, 1919). However, Article 152 of RPC does not include religious minister as a person in authority. Hence, performing the function of religious minister in solemnizing marriage is not usurpation of official function. It is submitted that the crime committed by accused is rape through fraudulent machination. 59. OTHER DECEIT- Other deceit under Article 316 (a) of RPC is committed by any person who, knowing that the real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. The law was taken from Article 455 of the Spanish Penal Code. However, the words "como libre" in the Spanish Penal Code, which means "free from encumbrance" do not appear in the English text of RPC, nonetheless, the same are deemed incorporated in the RPC. The gravamen of the crime is the disposition of legally encumbered 24 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA real property by the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must make an express representation in the deed of conveyance that the property sold or disposed of is free from any encumbrance (Naya vs. Abing, G.R. No. 146770, February 27, 2003, Callejo). 60. IGNONIMY - After killing the victim, the accused severed his sexual organ. Should ignominy be appreciated? No. For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim’s moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused (People vs. Cachola, G.R. Nos. 148712-15, January 21, 2004, Callejo)` 61. TREACHERY - The little boy (11 years of age) was merely flying his kite and was ready to get down from the roof when the accused, policeman, using his service pistol fired a shot directed at him. The boy died. Should the aggravating circumstance of treachery, abuse of superior strength and abuse of position be appreciated? The boy could not possibly put up a defense against a police officer who was armed with a gun. It is not so much as to put emphasis on the age of the victim, rather it is more of a description of the young victim's state of helplessness. Minor children, who by reason of their tender years, cannot be expected to put up a defense. When an adult person illegally attacks a child, treachery exists. The abuse of superior strength is already absorbed by treachery and need not be considered as a separate aggravating circumstance. The aggravating circumstance of abuse of public position should not be appreciated. There is no dispute that the accused is a policeman and that he used his service firearm in shooting the victim. However, there is no showing that the accused took advantage of his position as a policeman when he shot the victim (People vs. Fallorina, G.R. No. 137347, March 4, 2004, Callejo) Witness saw accused armed with knives, chase and overtake the victim in a vacant lot. The victim slipped and fell to the ground. Accused forthwith took turns in stabbing the victim as the latter tried to stand up. The prosecution failed to adduce any evidence as to how the aggression started and who started the same. Should treachery be appreciated? No. The barefaced fact that the victim was helpless when he was stabbed does not constitute proof of treachery. For treachery to be appreciated, it must be present at the inception of the attack, and if absent and the attack is continued, even if present at the subsequent stage, treachery is not considered as a qualifying or generic aggravating circumstance. The prosecution must adduce conclusive proof as to the manner in which the altercation started and resulted in the death of the victim, and if the prosecution fails to discharge its burden, the crime committed is homicide and not murder (People vs. De La Cruz, G.R. No. 131035, February 28, 2003, Callejo). Case law has it that the killing of minor children by adults qualifies the crime to murder even if the manner or mode of aggression or attack is not shown, the reason being that minor children by reason of their tender years cannot possibly defend themselves (People vs. Loreto, G.R. No. 137411-13, February 28, 2003, Callejo). If treachery and abuse of superior strength attended the killing, which circumstances should qualify the killing into murder? What should qualify the crime is treachery as proved and not abuse of superior strength. If treachery is not proved but abuse of superior strength was proved by the prosecution, the crime is qualified by abuse of superior strength (People vs. Loreto, G.R. No. 137411-13, February 28, 2003, Callejo).

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA

In the case at bar, the trial court merely relied on the suddenness of the attack on the unarmed and unsuspecting victim to justify treachery. As a general rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply if the attack was not preconceived but merely triggered by infuriation of the appellant on an act made by the victim. In the present case, it is apparent that the attack was not preconceived. It was triggered by the appellant’s anger because of the victim’s refusal to have a drink with the appellant and his companions (People vs. Dumadag, G.R. No. 147196, June 4, 2004, Callejo). What is clear after our review of the records is that the appellant and the victim were engaged in a quarrel, a heated argument which culminated in the appellant’s stabbing the victim in the heat of anger. As a rule, there can be no treachery when an altercation ensued between the appellant and the victim (People vs. Aquino, G.R. No. 147220, June 9, 2004, Callejo). Indeed in the case at bar, the victim seemed to have expected trouble, considering that upon seeing the appellant and the latter’s friends, they got out of the river and moved away. Nevertheless, treachery may still be appreciated even when the victim was warned of danger to his person; what is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate (People vs. Garin, G.R. No. 139069. June 17, 2004, Callejo). 62. FEMALE INFERIORITY - An attack made by a man with a deadly weapon upon an unarmed and defenseless woman constitutes abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself (People vs. Dionesio, G.R. No. 133445, February 27, 2003, Callejo). 63. VOLUNTARY SURRENDER - The appellants are not entitled to the mitigating circumstance of voluntary surrender. The evidence shows that the appellants were arrested when the police officers manning the checkpoint stopped the passenger jeepney driven by appellant Ronald and arrested the appellants. The fact that the appellants did not resist but went peacefully with the peace officers does not mean that they surrendered voluntarily (People vs. Castillano, G.R. No. 139412, April 2, 2003, CALLEJO). 64. EVIDENT PREMEDITATION - Evident premeditation is not presumed from mere lapse of time. The prosecution is burdened to prove that the malefactors had decided to commit a crime and performed an "act manifestly indicating that the offender had clung" to a previous determination to kill. It must be shown that there was a period sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the conscience to overcome the resolution of the will, as well as outward acts showing the intent to kill. The premeditation to kill should be plain and notorious. In the absence of clear and positive evidence proving this aggravating circumstance, mere presumptions and inferences thereon, no matter how logical and probable, would not be enough (People vs. Biso and Yalong, G.R. No. 111098-99, April 3, 2003, Callejo). Accused incensed at seeing the victim molesting his younger sister went to a notorious toughie in the area, and with two cohorts, proceeded to the house of the victim to confront him but failed to see the victim. Thus, they positioned themselves in the alley near the 26 | Page

SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA house and waited for victim. When the victim arrived, they killed him. Should evident premeditation be appreciated? No. The prosecution failed to prove that the four intended to kill victim and if they did intend to kill him, the prosecution failed to prove how the malefactors intended to consummate the crime; Except for the fact that the offender and his three companions waited in an alley for Dario to return to his house, the prosecution failed to prove any overt acts on the part of the offender and his cohorts showing that that they had clung to any plan to kill the victim (People vs. Biso and Yalong, G.R. No. 111098-99, April 3, 2003, Callejo) Comment: It is possible that the criminal resolution of the accused is merely to confront or take revenge short of killing. 65. DISREGARD OF SEX: Robbery with homicide is essentially a felony against property. The aggravating circumstance of disregard of the victim’s age is applied only to crimes against persons and honor. Moreover, the bare fact that the victim is a woman does not per se constitute disregard of sex. For this circumstance to be properly considered, the prosecution must adduce evidence that in the commission of the crime, the accused had particularly intended to insult or commit disrespect to the sex of the victim. In this case, the appellant killed the victim because the latter started to shout. There was no intent to insult nor commit disrespect to the victim on account of the latter’s sex (People vs. Reyes, G.R. No. 153119, April 13, 2004, Callejo. 66. VENDICATION: The mitigating circumstance of having acted in the immediate vindication of a grave offense was, likewise, properly appreciated. The appellant was humiliated, mauled and almost stabbed by the deceased. Although the unlawful aggression had ceased when the appellant stabbed Anthony, it was nonetheless a grave offense for which the appellant may be given the benefit of a mitigating circumstance. But the mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by Anthony, so that they should be considered as only one mitigating circumstance (People vs. Torpio, G.R. No. 138984, June 4, 2004, Callejo). 67. AID OF ARMED MEN: Aid of armed men or persons affording immunity requires (1) that the armed men are accomplices who take part in minor capacity, directly or indirectly (People vs. Lozano, G.R. Nos. 137370-71, September 29, 2003, En Banc) and (2) that the accused availed himself of their aid or relied upon them when the crime was committed. Thus, this circumstance should not be appreciated were armed men acted in concert to ensure the commission of the crime (People vs. Carino, G.R. No. 131117, June 15, 2004, Callejo). In conspiracy, all conspirators are liable as principals. They are not accomplices. 68. CRUELTY: The crime is not aggravated by cruelty simply because the victim sustained ten stab wounds, three of which were fatal. For cruelty to be considered as an aggravating circumstance there must be proof that, in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the pain and suffering of the victim. The number of wounds inflicted on the victim is not proof of cruelty (Simangan vs. People, G.R. No. 157984. July 8, 2004, Callejo).

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SUPPLEMENTAL PRE-WEEK BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless and unable to defend himself. His feet and hands were tied while the appellant mauled and kicked him, and hit him with a piece of wood. The appellant was so depraved that he even electrocuted the victim by placing a live wire on the latter’s palms and burying him alive. This is borne by the autopsy report of Dr. Suzette Yalung, which indicates that the victim died because of cardiac arrest due to asphyxiation. By his detestable acts, the appellant intended to exacerbate the suffering of the victim. Hence, cruelty was attendant to the commission of the crime. However, cruelty is absorbed by treachery (People vs. Chua, G.R. No. 149538, July 26, 2004, Callejo).

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