CRIM2 Flashcards
Q: Pia, a bold actress living on top floor of a plush
condominium in Makati City sunbathed naked at its
penthouse every Sunday morning. She was unaware
that the business executives holding office at the
adjoining tall buildings reported to office every
Sunday morning and, with the use of powerful
binoculars, kept on gazing at her while she sunbathed.
Eventually, her sunbathing became the talk of the
town. (1996 BAR)
(a) What crime, if any, did Pia commit? Explain.
(b) What crime, if any, did the business executives
commit? Explain.
A: Pia did not commit a crime, the felony closest to making
Pia criminally liable is Grave Scandal, but then such act is
not to be considered as highly scandalous and offensive
against decency and good customs. In the first place, it was
not done in a public place and within public knowledge or
view. As a matter of fact, it was discovered by the
executives accidentally and they have to use binoculars to
have public and full view of Pia sunbathing in the nude.
B: The business executives did not commit any crime.
Their acts could not be acts of lasciviousness (as there was
no overt lustful act), or slander, as the eventual talk of the
town, resulting from her sunbathing, is not directly
imputed to the business executives, and besides such topic
is not intended to defame or put Pia to ridicule. (UPLC
Suggested Answers)
The word “moral” implies conformity with the generally accepted
standards of goodness or Tightness in conduct or character, sometimes,
specifically, to sexual conduct.
Q: Juan and Petra are officemates. Later, intimacy
developed between them. One day, Juan sent to Petra
a booklet contained in a pay envelope which was
securely sealed. The booklet is unquestionably
indecent and highly offensive to morals. Juan was
thereafter charged under par. 3 of Art. 201 of the RPC,
as amended by P.D. 969, which provides that the
penalty of prision mayor or a fine from P6,000 to
P12,000, or both such imprisonment and fine shall be
imposed upon those who shall sell, give away or
exhibit films, prints, engravings, sculpture or
literature which are offensive to morals. Is Juan guilty
of the crime charged? Reasons. (1993 BAR)
A: NO. Juan is not guilty of the crime charged because the
law (Art. 201, RPC) covers only the protection of public
moral and not only the moral of an individual. (UPLC
The word “moral” implies conformity with the generally accepted
standards of goodness or Tightness in conduct or character, sometimes,
specifically, to sexual conduct.
Q: Define malfeasance, misfeasance and nonfeasance.
(2016 BAR)
A:
Malfeasance is the doing of an act which a person ought(must)
not to do at all.
Misfeasance is the improper doingof an act which a
person may or might lawfully do.
Nonfeasance is the omission of an actwhich a person
ought to do. (Black’s Dictionary, 6th Edition, West
Publishing 1990) (UPLC Suggested Answers)
Q: During a PNP buy-bust operation, Cao Shih was
arrested for selling 20 grams of methamphetamine
hydrochloride (shabu) to a poseur-buyer. Cao Shih,
through an intermediary, paid Patrick, the Evidence
Custodian of the PNP Forensic Chemistry Section, the
amount of P500,000 in consideration for the
destruction by Patrick of the drug. Patrick managed to
destroy the drug.
State with reasons whether Patrick committed the
following crimes: (2005 BAR)
(a) Direct Bribery;
(b) Indirect Bribery;
(c) Sec. 3 (e) of RA 3019 (Anti-Graft and Corrupt
Practices Act);
(d) Obstruction of Justice under PD 1829.
A: Patrick committed the crimes of Direct Bribery and
Infidelity in the Custody of Documents. When a public
officer is called upon to perform or refrain from
performing an official act in exchange for a gift, present or
consideration given to him (Art. 210, RPC), the crime
committed is Direct Bribery. Secondly, he destroyed the
shabu which is evidence in his official custody, thus,
constituting Infidelity in the Custody of Documents under
Art. 226 of the RPC.
B: Indirect bribery was not committed because he did not
receive the bribe because of his office but in consideration
of a crime in connection with his official duty.
C: Sec. 3(e), R.A. No. 8019 was not committed because
there was no actual injury to the government. When there
is no specific quantified injury, violation is not committed.
(Garcia-Rueda v. Amor, et al., G.R. No. 116938, 20 Sept.
D: Patrick committed the crime of Obstruction of Justice
although the feigner penalty imposable on Direct Bribery
and Infidelity in the Custody of Documents shall be
imposed. Sec. 1 of P.D. 1829 refers merely to the
imposition of the higher penalty and does not preclude
prosecution for obstruction of justice, even if the same
does not constitute another offense.
ALTERNATIVE ANSWER: Obstruction of Justice is not
committee in this case, because the act of destroying the
evidence in his custody is already penalized by another
law which imposes a higher penalty (Sec. 1, P.D. 1829)
(UPLC Suggested Answers)
Q: Deputy Sheriff Ben Rivas received from the RTC
Clerk of Court a Writ of Execution in the case of
Ejectment filed by Mrs. Maria Estrada vs. Luis Ablan.
The judgment being in favor of Estrada, Rivas went to
her lawyer’s office where he was given the necessary
amounts constituting the sheriff’s fees and expenses
for execution in the total amount of P550.00, aside
from P2,000.00 in consideration of prompt
enforcement of the writ from Estrada and her lawyer.
The writ was successfully enforced. What crime, if any,
did the sheriff commit? (2001 BAR)
A: The sheriff committed the crime of Direct Bribery
under the second paragraph of Art. 210, RPC, since the
P2,000 was received by him “in consideration” of the
prompt enforcement of the writ of execution which is an
official duty of the sheriff to do. (UPLC Suggested Answers)
Q: Charina, Clerk of Court of an RTC Branch, promised
the plaintiff in a case pending before the court that she
would convince the Presiding Judge to decide the case
in plaintiff’s favor. In consideration therefor, the
plaintiff gave Charina P20,000.00. Charina was
charged with violation of Sec. 3(b) of R.A. No. 3019,
prohibiting any public officer from directly or
indirectly requesting or receiving any gift, present,
percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law.
While the case was being tried, the Ombudsman filed
another information against Charina for Indirect
Bribery under the RPC. Charina demurred to the
second information, claiming that she can no longer
be charged under the RPC having been charged for the
same act under R.A. 3019. Is Charina correct? Explain.
(2009 BAR)
A: NO, Charina is not correct. Although the charge for
violation of R.A. No. 3019 and the charge for Indirect
Bribery (Art. 211, RPC) arose from the same act, the
elements of the violation charged under R.A. No. 3019 are
not the same as the felony charged for Indirect Bribery
under the RPC. (Mejia v. Pamaran, G.R. No. L-56741-42, 15
Apr. 1988)
Hence, the crimes charged are separate and distinct from
each other, with different penalties. The two charges do
not constitute a ground for a motion to dismiss or motion
to quash, as there is no jeopardy against the accused.
(UPLC Suggested Answers)
Q: Commissioner Marian Torres of the Bureau of
Internal Revenue (BIR) wrote solicitation letters
addressed to the Filipino-Chinese Chamber of
Commerce and Industry and to certain CEOs of various
multinational corporations requesting donations of
gifts for her office Christmas party. She used the
Bureau’s official stationery. The response was prompt
and overwhelming so much so that Commissioner
Torres’ office was overcrowded with rice cookers,
radio sets, freezers, electric stoves and toasters. Her
staff also received several envelopes containing cash
money for the employees’ Christmas luncheon. Has
Commissioner Torres committed any impropriety or
irregularity? What laws or decrees did she violate?
(2006 BAR)
A: YES. Commissioner Torres violated the following:
1. Indirect Bribery (Art. 211, RPC) for receiving gifts
offered by reason of office.
2. RA 6713 or Code of Conduct and Ethical Standards for
Public Officials and Employees when he solicited and
accept gifts. (Sec. 7(d))
3. PD 46 making it punishable for public officials and
employees to receive, and for private persons to give
gifts on any occasion, including Christmas. (UPLC
Suggested Answers)
Q: A, who is the private complainant in a murder case
pending before a Regional Trial Court judge, gave a
judge a Christmas gift, consisting of big basket of
assorted canned goods and bottles of expensive wines,
easily worth P10, 000.00. The judge accepted the gift knowing it came from A. What crime or crimes, if any,
were committed? (1997, 1993 BAR)
A: The judge committed the crime of Indirect Bribery
under Art. 211 of the RPC. The gift was offered to the
judge by reason of his office. In addition, the judge will be
liable for the violation of P.D. 46 which punishes the
receiving of gifts by public officials and employees on
occasions like Christmas. (UPLC Suggested Answers)
(a) What is the crime of Qualified Bribery? (2010
BAR)
(b) May a judge be charged and prosecuted for
such felony? How about a public prosecutor? A
police officer? Explain. (2010 BAR)
(a) Qualified Bribery is a crime committed by a public
officer who is entrusted with law enforcement and who, in
consideration of any offer, promise, gift or offer, refrains
from arresting or prosecuting an offender who has
committed a crime punishable by reclusion perpetua
and/or death. (Art. 211-A, RPC)
(b) NO, a judge may not be charged of this felony because
his official duty as a public officer is not law enforcement,
but the determination of cases already filed in court.
On the other hand, a public prosecutor may be prosecuted
for this crime in respect of the bribery committed, aside
from dereliction of duty committed in violation of Art. 208
of the RPC, should he refrain from prosecuting an offender
who has committed a crime punishable by reclusion
perpetua and/or death in consideration of any offer,
promise, gift or present.
Meanwhile, a police officer who refrains from arresting
such offender for the same consideration above stated,
may be prosecuted for this felony since he is a public
officer entrusted with law enforcement. (UPLC Suggested
Answers)
Q: One Sunday afternoon, Mr. X, President of ABC
Corp., happened to bump into the Labor Arbiter
assigned to the illegal dismissal case filed by certain
employees against his company. During their
encounter, Mr. X promised the Labor Arbiter a luxury
car in exchange for a favorable ruling. The Labor
Arbiter immediately rejected the offer and walked
away. What crime did Mr. X commit under the RPC, if any?
Explain. (2019 BAR)
A: Mr. X committed the crime of Attempted Corruption of
a Public Official. He offered to give the Labor Arbiter a
luxury car in exchange for a favorable ruling on a pending
illegal dismissal case. By making such offer, Mr. X already
commenced the performance of material acts of execution
in corrupting the Labor Arbiter. He was not able to
perform all the material acts of execution only because the
Labor Arbiter refused to accept the offer. (Pozar v. CA, G.R.
No. L-62439, 23 Oct. 1990)
ALTERNATIVE ANSWER: Mr. X committed no crime.
Because there was no acceptance, there is no crime, and
therefore, no penalty should be imposed. Nullum crimen
nulla poena sine lege. There is no crime where there is no
law punishing it. (UPLC Suggested Answers)
Q: Ricky was driving his car when he was flagged
down by a traffic enforcer for over speeding. Realizing
his undoing, but in a hurry for a meeting, Ricky shoved
a PhP500 bill in the traffic enforcer’s pocket and
whispered to the latter to refrain from issuing him a
traffic violation receipt. The traffic enforcer still
issued him a ticket, and returned his money. What
crime, if any, was committed by Ricky? (2018 BAR)
A: Ricky in showing a P500 bill in the traffic enforcer’s
pocket, clearly committed the crime of Corruption of
Public Officials under Art. 212 of the RPC, which states
that any person who shall have made the offers or
promises or given the gifts or present to a public officer is
guilty of corruption of public officer. Even if the P500 bill
was returned it cannot erase the fact that gifts or presents
was given to the traffic enforcer. (UPLC Suggested
Answers)
Q: How is malversation distinguished from estafa?
(1999 BAR)
A: Malversation differs from estafa in that malversation is
committed by an accountable public officer involving
public funds or property under his custody and
accountability; while estafa is committed by nonaccountable
public officer or private individual involving
funds or property for which he is not accountable to the
government.(UPLC Suggested Answers)
Q: Allan, the Municipal Treasurer of the Municipality
of Gerona, was in a hurry to return to his office after a
day-long official conference. He alighted from the
government car which was officially assigned to him,
leaving the ignition key and the car unlocked, and
rushed to his office. Jules, a bystander, drove off with
the car and later sold the same to his brother, Danny
for P20,000.00, although the car was worth
P800,000.00.
What are the respective crimes, if any, committed by
Allan, Danny and Jules? Explain. (2005 BAR)
A: Allan, the municipal treasurer is liable for malversation
committed through negligence or culpa. The government
car which was assigned to him is public property under
his accountability by reason of his duties. By his act of
negligence, he permitted the taking of the car by another
person, resulting in malversation, consistent with the
language of Art. 217 of RPC.
Danny committed the crime of fencing for having bought
the car, which was the proceeds of carnapping, a crime in
the nature of theft or robbery of motor vehicle. The
presumption of fencing applies to him for he paid a price
so inadequate for the value of the car.
Jules committed the crime of carnapping for the unlawful
taking, with intent to gain, of the government’s motor
vehicle.
NOTE: Unlawful taking of a motor vehicle is now governed
by the New Anti-Carnapping Act of 2016 (R.A. 10883), not
by the provisions of the RPC on theft or robbery.
Q: Alex Reyes, together with Jose Santos, were former
warehousemen of the Rustan Department Store. In
1986, the PCGG sequestered the assets, fund and
properties of the owners-incorporators of the store,
alleging that they constitute “Ill-gotten wealth” of the
Marcos family. Upon their application, Reyes and
Santos were appointed as fiscal agents of the
sequestered firm and they were given custody and
possession of the sequestered building and its
contents, including various vehicles used in the firm’s
operations.
After a few months, an inventory was conducted and it
was discovered that two (2) delivery vans were
missing. After demand was made upon them, Reyes
and Santos failed to give any satisfactory explanation
why the vans were missing or to turn them over to the
PCGG; hence, they were charged with Malversation of
Public Property. During the trial, the two accused
claimed that they are not public accountable officers
and, if any crime was committed, it should only be
Estafa under Art. 315, par. 1(b) of the RPC.
What is the proper offense committed? State the
reason(s) for your answer. (2001 BAR)
A: The proper offense committed was Malversation of
Public Property, not estafa, considering that Reyes and
Santos, upon their application, were constituted as “fiscal
agents” of the sequestered firm and were “given custody
and possession” of the sequestered properties, including
the delivery vans which later they could not account for.
They were thus made the depositary and administrator of
properties deposited by public authority and hence, by the
duties of their office/position, they are accountable for
such properties. Such properties, having been sequestered
by the Government through the PCGG, are in custodia legis
and therefore impressed with the character of public
property, even though the properties belong to a private
individual. (Art. 222, RPC)
The failure of Reyes and Santos to give any satisfactory
explanation why the vans were missing, is prima facie
evidence that they had put the same to their personal use.
(UPLC Suggested Answers)
Q: Randy, an NBI agent, was issued by the NBI an
armalite rifle (M16) and a Smith and Wesson Revolver
Cal. 38. After a year, the NBI Director made an
inspection of all the firearms issued. Randy, who
reported for work that morning, did not show up
during the inspection. He went on absence without
leave (AWOL). After two years, he surrendered to the
NBI the two firearms issued to him. He was charged
with malversation of government property before the
Sandiganbayan.
Randy put up the defense that he did not appropriate
the armalite rifle and the revolver for his own use,
that the delay in accounting for them does not
constitute conversion and that actually the firearms
were stolen by his friend, Chiting. Decide the case.
(1994 BAR)
A: Randy is guilty as charged under Art. 217, RPC. He is
accountable for the firearms they issued to him in his
official capacity. The failure of Randy to submit the
firearms upon demand created the presumption that he
converted them for his own use. Even if there is no direct
evidence of misappropriation, his failure to account for
the government property is enough factual basis for a
finding of malversation.
Indeed, even his explanation that the guns were stolen is
incredible for if the firearms were actually stolen, he
should have reported the matter immediately to the
authorities. (UPLC Suggested Answers)
Q: Dencio, who is the Municipal Treasurer of the town,
was also the treasurer of a charity ball of the church.
Because he was short of payroll funds for the
municipal employees, he used part of the church funds
to replenish the payroll funds with the intention of
returning the same when the public funds came.
(1990 BAR)
(a) Is Dencio guilty of malversation under the
RPC? State your reasons.
(b) Assuming that he failed to replenish the
church funds, may he be held criminally liable
thereby?
(a) NO. The church funds used by Dencio do not constitute
public funds which are the proper subject of malversation.
Neither does said funds constitute the so-called private funds which could be the proper subject of malversation
under Art. 222, RPC, which pertain to private property
placed in the custody of public officers by reason of their
office.
(b) YES. Momentary use of funds, since there is
defraudation, is tantamount to estafa under Art. 215 of the
RPC. This is because he received the funds in his capacity
as treasurer and there was temporary damage caused.
Personal benefit is not an element of the crime of estafa.
(UPLC Suggested Answers)
Q: Governor A was given the amount of P10 million by
the Department of Agriculture for the purpose of
buying seedlings to be distributed to the farmers.
Supposedly intending to modernize the farming
industry in his province, Governor A bought farm
equipment through direct purchase from XY
Enterprise, owned by his kumpare B, the alleged
exclusive distributor of the said equipment. Upon
inquiry, the Ombudsman discovered that B has a
pending patent application for the said farm
equipment. Moreover, the equipment purchased
turned out to be overpriced. What crime or crimes, if
any, were committed by Governor A? Explain. (2016
BAR)
A: Governor A committed the crimes of (1) Technical
Malversation; and (2) Violation of Secs. 3(e) and (g) of R.A.
No. 3019.
Governor A committed the crime of Illegal Use of Public
Funds or Property punishable under Art. 220 of the RPC,
also known as Technical Malversation. The crime has
three elements: (a) that the offender is an accountable
public officer; (b) that he applies public funds or property
under his administration to some public use; and (c) that
the public use for which such funds or property has been
applied is different from the purpose for which they were
originally appropriated by law or ordinance. (Ysidro v
People, G.R. No. 192330, 14 Nov. 2012)
The amount of P10M granted by the Department of
Agriculture to Governor A, an accountable public officer, is
specifically appropriated for the purpose of buying
seedlings to be distributed to the farmers. Instead,
Governor A applied the amount to acquire modern farm
equipment through direct purchase from XY Enterprise
owned by his kumpare. The law punishes the act of
diverting public funds earmarked by law or ordinance for
a specific public purpose to another public purpose, hence,
the liability for technical malversation.
Governor A can also be held liable for violation of Sec. 3(e)
of RA 3019, which has the following elements: (1) the
accused is a public officer discharging administrative,
judicial, or official functions; (2) he must have acted with
manifest partiality, evident bad faith or gross excusable
negligence; and (3) his action caused undue injury to any
party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the
discharge of his functions.
The facts show that the first element is present. The
second element is likewise present because “through
manifest partiality” in favoring his kumpare, Governor A
did not hold public bidding and directly purchased the
farm equipment from the latter. With respect to the third
element, Governor A’s actions caused undue injury to the
government as well as the farmers deprived of the
seedlings. His acts likewise gave his kumpare, a private
party, the unwarranted benefit, advantage, or preference,
to the exclusion of other interested suppliers.
The act committed by the Governor is also in violation of
Sec. 3(g) of R.A. No. 3019 for entering a contract on behalf
of the government which is manifestly and grossly
disadvantageous to the same. (UPLC Suggested Answers)
Q: A typhoon destroyed the houses of many of the
inhabitants of X Municipality. Thereafter, X
Municipality operated a shelter assistance program
whereby construction materials were provided to the
calamity victims, and the beneficiaries provided the
labor. The construction was partially done when the
beneficiaries stopped helping with the construction
for the reason that they needed to earn income to
provide food for their families.
When informed of the situation, Mayor Maawain
approved the withdrawal of ten boxes of food from X
Municipality’s feeding program, which were given to
the families of the beneficiaries of the shelter
assistance program. The appropriations for the funds
pertaining to the shelter assistance program and
those for the feeding program were separate items on
X Municipality’s annual budget. (2015 BAR)
(a) What crime did Mayor Maawain commit?
Explain.
(b) May Mayor Maawain invoke the defense of
good faith and that he had no evil intent when
he approved the transfer of the boxes of food
from the feeding program to the shelter
assistance program? Explain.
(a) Mayor Maawain committed the crime of Illegal Use of
Public Funds or Property punishable under Art. 220 of the
RPC. This offense is also known as Technical Malversation.
The crime has three (3) elements: (a) that the offender is
an accountable public officer; (b) that he applies public
funds or property under his administration to some public
use; and (c) that the public use for which such funds or
property were applied is different from the purpose for
which they were originally appropriated by law or
ordinance. The funds for the feeding program are not specifically
appropriated for the beneficiaries of the shelter assistance
program in X Municipality’s annual budget. Mayor
Maawain ought to use the boxes of food earmarked
particularly for the feeding program, which would cater
only to the malnourished among his constituents who
needed the resources for proper nourishment.
(b) A: NO. Mayor Maawain cannot invoke good faith when he
approved the transfer of the boxes of food from the
feeding program to the Shelter Assistance program.
“Criminal intent is not an element of technical
malversation. The law punishes the act of diverting public
property earmarked by law or ordinance for a particular
purpose to another public purpose. The offense is mala
prohibita, meaning that the prohibited act is not
inherently immoral but becomes a criminal offense
because positive law forbids its commission based on
considerations of public policy, order and convenience. It
is the commission of an act as defined by the law, and not
the character or effect thereof that determines whether or
not the provision has been violated. Hence, malice or
criminal intent is completely irrelevant”. (Ysidoro v.
People, G.R. No. 192330, 14 Nov. 2012) (UPLC Suggested
Answers)
Q: Elizabeth is the municipal treasurer of Masinloc,
Zambales. On Jan. 10, 1994, she received, as municipal
treasurer, from the Department of Public Works and
Highways, the amount of P100,000.00 known as the
fund for construction, rehabilitation, betterment, and
Improvement (CRBI) for the concreting of Barangay
Phanix Road located in Masinloc, Zambales, a project
undertaken on proposal of the Barangay Captain.
Informed that the fund was already exhausted while
the concreting of Barangay Phanix Road remained
unfinished, a representative of the Commission on
Audit conducted a spot audit of Elizabeth who failed to
account for the P100,000 CRBI fund.
Elizabeth, who was charged with malversation of
public funds, was acquitted by the Sandiganbayan of
that charge but was nevertheless convicted, in the
same criminal case, for illegal use of public funds. On
appeal, Elizabeth argued that her conviction was
erroneous as she applied the amount of P50,000.00
for a public purpose without violating any law or
ordinance appropriating the said amount for any
specific purpose. The absence of such law or
ordinance was, in fact, established.
Is the contention of Elizabeth legally tenable? Explain.
(1996 BAR)
A: NO. Elizabeth’s contention that her conviction for
Illegal Use of Public Funds (Technical Malversation) was
erroneous is legally tenable because she was charged for
malversation of public funds under Art. 217 of the RPC but
was convicted for Illegal Use of Public Funds which is
defined and punished under Art. 220.
A public officer charged with malversation may not be
validly convicted of Illegal Use of Public Funds (Technical
Malversation) because the latter crime is not necessarily
included nor does it necessarily include the crime of
malversation.
The Sandiganbayan should have followed the procedure
provided in Sec. 11, Rule 119 of the Rules of Court and
order the filing of the proper Information. (Parungao v.
Sandiganbayan, G.R. No. 96025, 15 May 1991) From the
facts, there is no showing that there is a law or ordinance
appropriating the amount to a specific public purpose. As
a matter of fact, the problem categorically states that the
absence of such law or ordinance was, in fact, established.
So, procedurally and substantially, the Sandiganbayan’s
decision suffers from serious infirmity. (UPLC Suggested
Answers)
Q: During a town fiesta, A, the chief of police,
permitted B, a detention prisoner and his compadre,
to leave the municipal jail and entertain visitors in his
house from 10:00 AM to 8:00 PM. B returned to the
municipal jail at 8:30 PM. Was there any crime
committed by A? (1997 BAR)
A: YES. A committed the crime of Infidelity in the Custody
of a Prisoner. Since B is a detention prisoner, as Chief of
Police, A has custody over B. Even if B returned to the
municipal jail at 8:30 PM. A, as custodian of the prisoner,
has maliciously failed to perform the duties of his office,
and when he permits said prisoner to obtain a relaxation
of his imprisonment, he consents to the prisoner escaping
the punishment of being deprived of his liberty which can
be considered real and actual evasion of service under Art.
223 of the RPC. (U.S. v. Leon Bandino, G.R. No. 9964, 11 Feb.
1915) (UPLC Suggested Answers)
Q: Ernani was accused of estafa. Unable to post a bail
bond for his provisional liberty pending trial of his
case, he was detained in the city jail. On the date of the
hearing of the estafa case, Daniel, a policeman
detailed in the city jail, escorted Ernani to the city hall
for the trial. Daniel removed the handcuffs of Ernani
and allowed him to sit on one of the chairs inside the
courtroom.As Daniel was talking to a lawyer inside the
courtroom, Ernani, with the help of a cigarette vendor,
Meynardo, who used his cigarette container as cover,
surreptitiously moved out of the room and escaped.
Ernani and Meynardo went to the comfort room for a
while, then went down the stairs and lost themselves
in the crowd. What crime/s were committed by
Ernani, Daniel and Meynardo? Give your reasons.
(1989 BAR)
A:
1. Ernani, the escaped prisoner himself is not criminally
liable for any offense. The detention prisoner who
escapes from detention does not commit any crime. If
he were a convict by final judgment who is serving a
sentence which consists of deprivation of liberty and
he escapes during term of his sentence, he would be
liable for Evasion of Service Sentence. (Art. 157, RPC)
2. Daniel, the policeman, committed the crime of Evasion
thru Negligence, one of the forms of Infidelity in the
Custody of Prisoner (Art. 224, RPC), the essential
elements of which offense are:
a. That the offender is a public officer;
b. That he has in his custody or charge a prisoner,
either detention prisoner or prisoners by final
judgment;
c. That such prisoner escaped from his custody thru
his negligence.
All of these elements are present, Daniel, a policeman
detailed in the city jail, is a public officer. As the escort
for Ernani in the latter’s trial, he had custody of charge
of a detention prisoner. Ernani escape was thru his
negligence because after removing Ernani’s handcuffs
and allowing him to sit in one of the chairs inside the
courtroom, he should have taken the necessary
precautions to prevent Ernani’s escape by keeping an
eye on him. Instead, he provided the opportunity for
the escape by talking with a lawyer and not keeping
watch over his prisoner.
3. Meynardo, not being a public officer, is guilty of the
crime of Delivering Prisoners from Jails (Art. 156,
RPC), which is committed by any person who either
removes from any jail or penal establishment any
person confined therein, or who helps the escape of
such person by means of violence, intimidation,
bribery of other means. The act of Meynardo in giving
to Ernani his cigarette container is helping in the
latter’s escape by other means. (UPLC Suggested
Answers)
Q: To secure the release of his brother Willy, a
detention prisoner, and his cousin Vincent, who is
serving sentence for homicide, Chito asked the RTC
Branch Clerk of Court to issue an Order which would
allow the two prisoners to be brought out of jail. At
first, the Clerk refused, but when Chito gave her P50,000.00, she consented.
She then prepared an Order requiring the appearance
in court of Willy and Vincent, ostensibly as witnesses
in a pending case. She forged the judge’s signature,
and delivered the Order to the jail warden who, in
turn, allowed Willy and Vincent to go out of jail in the
company of an armed escort, Edwin. Chito also gave
Edwin P50,000.00 to leave the two inmates unguarded
for three minutes and provide them with an
opportunity to escape. Thus, Willy and Vincent were
able to escape.
What crime or crimes, if any, had been committed by
Edwin, and the jail warden? Explain your answer.
(Question reframed) (2009 BAR)
A: Edwin, the jail guard who escorted the prisoner in
getting out of jail, committed the crimes of –
1. Infidelity in the Custody of Prisoners, specifically
conniving with or consenting to Evasion for leaving
unguarded the prisoners escorted by him and provide
them an opportunity to escape (Art. 223, RPC); and
2. Direct Bribery for receiving the P50,000.00 as
consideration for leaving the prisoners unguarded
and allowing them the opportunity to escape. (Art.
210, RPC)
The jail warden did not commit nor incur a crime there
being no showing that he was aware of what his
subordinates had done nor of any negligence on his part
that would amount to infidelity in the custody of
prisoners. (UPLC Suggested Answers)
Q: Dancio, a member of a drug syndicate, was a
detention prisoner in the provincial jail of X Province.
Brusco, another member of the syndicate, regularly
visited Dancio. Edri, the guard in charge who had been
receiving gifts from Brusco everytime he visited
Dancio, became friendly with him and became relaxed
in the inspection of his belongings during his jail
visits. In one of Brusco’s visits, he was able to smuggle
in a pistol which Dancio used to disarm the guards and
destroy the padlock of the main gate of the jail,
enabling Dancio to escape. What crime(s) did Dancio,
Brusco and Edri commit? Explain. (2015 BAR)
A: Dancio committed the crime of direct assault under Art.
148 of the RPC for disarming the guards with the use of
pistol while they are engaged in the performance of their
duties.
Edri committed infidelity in the custody of prisoner or
evasion through negligence under Article 224 of the RPC.
As the guard in charge, Edri was negligent in relaxing the
inspection of the Brusco’s belongings during jail visits
allowing him to smuggle a pistol to Dencio, which he
subsequently used to escape. Edri also committed indirect bribery under Article 211 of the Revised Penal Code by
accepting gifts from Brusco, who was part of the syndicate
to which Dancio belonged.
Brusco committed delivery of prisoner from jail under
Article 156 of the Revised Penal Code, as well as bribery
under Article 210 of the same Code. Helping a person
confined in jail to escape constitutes this crime, and by
providing Dencio with a pistol, he helped him escape.
(UPLC Suggested Answers)
Q: During the presentation of the prosecution’s
evidence, Reichter was called to the witness stand
with the stated purpose that he would testify that his
wife Rima had shot him in the stomach with a .38
caliber pistol, resulting in near fatal injuries. Upon
objection of the defense on the ground of the marital
disqualification rule, the presiding judge (Judge
Rossano) disallowed Reichter from testifying in the
case. Its motion for reconsideration having been
denied, the People of the Philippines went up on
certiorari to the CA questioning Judge Rossano’s
ruling.
After due proceedings, the CA rendered judgment
declaring Judge Rossano’s ruling void ab initio for
having been made with grave abuse of discretion
amounting to lack or excess of jurisdiction, and
directing Judge Rossano to allow Reichter to testify in
the criminal case for the stated purpose. This is based
on the fact that the marital privilege rule does not
apply where a spouse committed the crime against the
other.
As the CA decision became final and executory, the
criminal case before the RTC was calendared for trial.
At the scheduled trial, the prosecution called Reichter
to the witness stand in order to testify on the same
matter it earlier announced. The defense objected on
the ground that the CA erred in its disposition of the
certiorari case. Judge Rossano sustained the objection
and again disallowed Reichter from testifying in the
criminal case. Repeated pleas from the prosecution
for Judge Rossano to reconsider his ruling and to
allow Reichter to testify fell on deaf ears.
May Judge Rossano be convicted of a crime? If yes,
what crime did he commit? (2018 BAR)
A: YES. Judge Rossano may be convicted of the crime of
Open Disobedience (Art. 231, RPC) which provides that
any judicial or executive officer who shall openly refuse to
execute the judgment, decision or order of any suspension
authority made within the scope of the jurisdiction of the
latter and issued with all the legal formalities shall suffer
the penalties of arresto mayor in its medium period to prision correctional, special disqualification and fine.
The ruling was issued by the Court of Appeals, it was
already final and executory; the act of Judge disallowing
Reichter from testifying is open disobedience under the
law.
ALTERNATIVE ANSWER: Judge Rossano may be charged
and convicted of the crime of Dereliction of Duty under
Art. 206 of the RPC, which provides: Art. 206. Unjust
interlocutory order. – Any judge who shall knowingly
render an unjust interlocutory order or decree shall suffer
the penalty of arresto mayor in its minimum period and
suspension; but if he shall have acted by reason of
inexcusable negligence or ignorance and the interlocutory
order or decree be manifestly unjust, the penalty shall be
suspension.
ANOTHER ALTERNATIVE ANSWER: Judge Rosario can
be held liable for violation of Sec. 3(e) of RA No. 3019 for
giving unwarranted preference, advantage or benefits to
private party through manifest partiality and evident bad
faith. In People v. Reyes (G.R. No. 177105-06, 12 Aug. 2010),
arrogant refusal to recognize and obey the CA decision
causing undue injury to the complainant and giving
unwarranted benefits ¢o private individuals constitutes
evident bad faith and manifest partiality contemplated in
violation of Sec. 3(e) of R.A. No. 3019. (UPLC Suggested
Answers)
Q: May a public officer charged under Section 3(b) of
Republic Act No. 3019 directly or indirectly
requesting or receiving any gift, present, share,
percentage or benefit, for himself or for any other
person, in connection with any contract or transaction
between the government and any other party,
wherein the public officer in his official capacity has to
intervene under the law’’ also be simultaneously or
successively charged with direct bribery under Article
210 of the Revised Penal Code? Explain. (2019, 2010,
2009 BAR)
A: Yes, a public officer charges under Sec. 3 (b) of R.A No.
3019 (Anti-Graft and Corrupt Practices Act) may also be
charged simultaneously or successively for the crime of
direct bribery under Art. 210 of the Revised Penal Code,
because two crimes are essentially different and are
penalized under distinct legal philosophies. Whereas
violation of Sec. (b) of R.A. No. 3019 is a malum
prohibitum, the crime under Art. 210 of the Code is a mala
in se. (Bar Q&A by Judge Alejandria, 2022)
NOTE: Although the charge for violation of R.A. No. 3019
and the charge for Indirect Bribery arose from the same
act, the elements of the violation charged under R.A. No.
3019 are not the same as the felony charged for Indirect
Bribery under the RPC. There is no double jeopardy if the
two cases shall be filed against the accused even if they
arose from the same incident.
Q: In 2003, the Province of Davao del Sur purchased
two vehicles for the use of the Governor and Vice
Governor, respectively. The purchase requests, which
were all signed by Luis as then Governor of the
province, requested for the acquisition of one unit of
Ford Ranger XLT 4x4 and one unit of Toyota Hilux
4x4. The procurement of the sublect vehicles did not
undergo competitive public bidding as it was effected
through direct purchase. The mode of procurement
was approved by the members of the Bids and Awards
Committee (BAC) of the province. The two vehicles
were delivered to the provincial government, and
after inspection and acceptance by the concerned
officials, payments were issued to the suppliers.
Subsequently, a complaint was filed by a concerned
citizen before the Office of the Ombudsman-Mindanao
(OMB) claiming that the purchase of the provincial
government violated the procurement law. The OMB,
after due investigation, verfied that the provincial
govemment did not comply with the required
procedure of the procurement law. Based on this
finding, the OMB filed with the Sandiganbayan an
Information against Luls and the members of the BAC
for violation of Section 3(e) of Republic Act No. 3019.
The Sandiganbayan found Luis and the members of
the BAC gully on the sole reason that violation of the
procurement law constitutes evident bad faith and
manifest partiality on the part of the accused.
Is the Sandiganbayan correct? Explain briefly. (2022
BAR)
A: The Sandiganbayan is not correct in convicting Luis and
the members of the BAC.
Criminal liability does not depend solely upon the
allegedly scandalous irregularity of the bidding procedure.
For even if it were true and proved beyond reasonable
doubt that the bidding had been rigged, this
pronouncement alone does not automatically result in
finding the act of petitioner similarly culpable. It is
presumed that he acted in good faith in relying upon the
documents he signed and thereafter endorsed. The
prosecution must show not only the defects in the bidding
procedure, a circumstance which we need not presently
determine, but also the alleged evident bad faith, gross
inexcusable negligence or manifest partiality on the
purchase order and despite knowledge that the winning
bidder did not offer the lowest price. In the instant case, Luis and the members of the BAC act of
pursuing the subject procurements was motivated not by
any corrupt intent to favor one car dealer over another or
to unduly receive any pecuniary benefit. Such actuations
were simply based on their honest belief that direct
procurement was legally permissible. (Martel vs. People,
G.R. Nos. 224720-23 & 224765-68, 2 Feb. 2021)
Q: One Sunday afternoon, Mr. X, President of ABC
Corp., happened to bump into the Labor Arbiter
assigned to the illegal dismissal case filed by certain
employees against his company. During their
encounter, Mr. X promised the Labor Arbiter a luxury
car in exchange for a favorable ruling. The Labor
Arbiter immediately rejected the offer and walked
away.
Assuming that Mr. X’s offer was instead accepted,
should the Labor Arbiter be held liable for any crime
under the RPC? If so, for what crime? May the Labor
Arbiter also be held liable for violation of the Anti-
Graft and Corrupt Practices Act? Explain. (2019 BAR)
A: The Labor Arbiter should be held liable for Direct
Bribery. Under Art. 210 of the RPC, public officer commits
direct bribery by accepting a gift in consideration of the
execution of an act which does not constitute a crime, in
connection with the performance of his official duties. By
accepting Mr. X’s offer of a luxury car, the Labor Arbiter
agreed to render a ruling in Mr. X’s favor.
The Labor Arbiter may also be held liable for violation of
RA 3019, or the Anti-Graft and Corrupt Practices Act.
Under Sec. 3(e), it is considered a corrupt practice of any
public officer to cause any undue injury to any party,
including the Government, or give any private party
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality when evident bad
faith, or gross inexcusable negligence. There is manifest
partiality when there is a clear, notorious or plain
inclination or predilection to favor one side or person
rather than another (Fuentes v. People, G.R. No. 186421, 17
Apr. 2017). Here, the Labor Arbiter committed manifest
partiality in favor of Mr. X. (UPLC Suggested Answers)
Q: Overjoyed by the award to his firm of a multi-billion
government contract for the development of an
economic and tourism hub in the Province of Blank,
Mr. Gangnam allotted the amount of P100 Million to
serve as gifts for certain persons instrumental in his
firm’s winning the award.
He gave 50% of that amount to Governor Datu, the
official who had signed the contract with the proper
authorization from the Sangguniang Panlalawigan;
25% to Bokal Diva, the Sangguniang Panlalawigan
member who had lobbied for the award of the project
in the Sangguniang Panlalawigan; and 25% to Mayor
Dolor of the Municipality where the project would be implemented. Governor Datu received his share
through his wife, Provincial First Lady Dee, who then
deposited the amount in her personal bank account.
Previously, upon facilitation by Bokal Diva, Mr.
Gangnam concluded an agreement with Mayor Dolor
for the construction of the Blank Sports Arena worth
P800 Million. The project was highly overpriced
because it could be undertaken and completed for not
more than P400 Million. For this project, Mayor Dolor
received from Mr. Gangnam a gift of P10 Million, while
Bokal Diva got P25 Million. In both instances, Bokal
Diva had her monetary gifts deposited in the name of
her secretary, Terry, who personally maintained a
bank account for Bokal Diva’s share in government
projects.
What provisions of R.A. No. 3019 (Anti-Graft & Corrupt
Practices Act), if any, were violated by any of the
above-named individuals, specifying the persons
liable therefor? Explain your answer. (2017 BAR)
A: Governor Datu, Mayor Dolor and Bokal Diva are liable
for violation of Sec. 3(b) of RA No. 3019 for receiving
money in connection with government contract or
transaction for the development of an economic and
tourism hub where they have the right to intervene under
the law. Likewise, Mr. Gangnam, is also liable for violation
of Sec. 3(b) of RA No. 3019 on the basis of conspiracy. (Go
v. The Fifth Division, Sandiganbayan, G.R. No. 172602, 13
Apr. 2007)
Mayor Dolor and Bokal Diva are liable for violation of Sec.
3(b) of RA No. 3019 for receiving money in connection
with government contract or transaction for the
construction of the Blank Sports Arena or violation of Sec.
3(e) for giving Mr. Gangnam, a private party, unwarranted
benefits, advantage or preference through manifest
partiality and evident bad faith by entering an agreement
for such construction, which is highly overpriced, or
violation of Sec. 3(g) for entering, on behalf of the
Government, into any contract or transaction for such
construction manifestly and grossly disadvantageous to
the same. Mr. Gangnam, for giving money to the said
public officers or for entering such contract, is also liable
for violation of Sec. 3(b) of RA No. 3019 on the basis of
conspiracy. (Go v. The Fifth Division, Sandiganbayan, supra)
(UPLC Suggested Answers)
Q: To aid in the rebuilding and revival of Tacloban City
and the surrounding areas that had been devastated
by the strongest typhoon. to hit the country in decades,
the Government and other sectors, including NGOs,
banded together in the effort. Among the NGOs was
Bangon Waray, Inc. (BaWI), headed by Mr. Jose Ma.
Gulang, its President and CEO. BaWI operated mainly
as a social amelioration and charitable institution. For
its activities in the typhoon-stricken parts of Leyte
Province, BaWI received funds from all sources, local
and foreign, including substantial amounts from legislators, local government officials and the EU. After
several months, complaints were heard about the very
slow distribution of relief goods and needed social
services by BaWI.
The COA reported the results of its audit to the effect
that at least P10 Million worth of funds coming from
public sources channeled to BaWI were not yet
properly accounted for. The COA demanded
reimbursement but BaWI did not respond.
Hence, Mr. Gulang was criminally charged in the Office
of the Ombudsman with malversation of public funds
and failure of accountable officer to render accounts as
respectively defined and punished by Art. 217 and Art.
218 of the RPC. He was also charged with violation of
Sec. 3(e) of R.A. No. 3019 for causing undue injury to
the Government. In his defense, Mr. Gulang mainly
contended that he could not be held liable under the
various charges because he was not a public officer.
Discuss whether the charge of violation of R.A. 3019
against Mr. Gulang is proper. Explain your answer.
(Question reframed) (2017 BAR)
A: NO. As a general rule, a private individual can be held
liable for violation of R.A. No. 3019 if he conspired with a
public officer in committing this crime (Go v. The Fifth
Division, Sandiganbayan, G.R. No. 172602, 13 Apr. 2007).
However, there is no showing in this case that a public
officer violated R.A. No. 3019 and Mr. Gulang conspired
with that public officer in committing this crime. Hence,
the charge against Mr. Gulang as a private individual
without a co-accused, who is a public officer, is improper.
(UPLC Suggested Answers)
Q:
(a) Melda who is the private secretary of Judge
Tolits Naya, was persuaded by a litigant,
Jumbo, to have his case calendared as early as
possible for a consideration of P500.00. May
she be held criminally liable for this
accommodation? Explain your answer. (1990
BAR)
(b) What will be the criminal liability of Melda if
she volunteered to persuade Judge Tolits Naya
to rule in Jumbo’s favor without asking any
consideration? Explain your answer. (1990
BAR)
(a) The answer would depend or be qualified by the
implication of the phrase “to have his case calendared as
early as possible.”
If the phrase is interpreted as an unjust act and in
violation of the rule to give priority to the older cases, then
she would be liable under direct bribery for an act which
does not constitute a crime but is unjust. He may also be
held liable under Sec. 3 (e) of RA 3019 for “giving any
private party any unwarranted benefits.”
If the phrase is interpreted as a non-violation of the rules
and regulations, then she can only be held liable for direct
bribery.
(b) A: Melda is not criminally liable because the act of
volunteering to persuade is not a criminal act. It is the act
of persuading that is considered a criminal act. The act
does not fall under Art. 210 of the RPC on Direct Bribery
nor does it fall under Art. 211 of the RPC on Indirect
Bribery. Neither does it fall under the Anti-Graft and
Corrupt Practices Act. Sec. 3(a) of R.A. No. 3019 refers to
acts of persuading another public official to violate rules
and regulations. (UPLC Suggested Answers)
Q: After a heated argument over his philandering,
Higino punched on the head his wife Aika, who was six
(6) and a half months pregnant. Because of the impact,
Aika lost her balance, fell on the floor with her head
hitting a hard object. Aika died and the child was
expelled prematurely. After 36 hours, the child died.
(2015 BAR)
(a) What crime(s) did Higino commit? Explain.
(b) Assuming that when the incident occurred,
Aika was only 6 months pregnant, and when
she died, the fetus inside her womb also died,
will your answer be different? Explain.
(a) Higino is liable for parricide under Art. 246 of the RPC
for the death of his wife, Aika. Higino is also liable for
infanticide under Art. 255 of the RPC. When a child was
killed below 3-days-old, the crime is infanticide regardless
of the person who killed such child. Moreso, a child who
had been born less than 7 months and lived for at least 24
hours already acquired personality. (Bar Q&A by Judge
Alejandria, 2022)
(b) YES. If the child died inside the womb of Aika, who was
only six months, the crime committed is complex crime of
Parricide with Unintentional Abortion. Killing the unborn
child as a result of the violence employed against the
mother without intent to abort is unintentional abortion.
Since the child died inside the womb of the mother,
unintentional abortion is committed regardless of viability
of the victim. Because the same violence that killed the
mother also caused unintentional abortion, the crime
committed is a complex crime (People v. Pacayna, Jr. G.R.
No. 179035, 16 Apr. 2008; People v. Robinos, G.R. No.
138453, 29 May 2002; People v. Villanueva, G.R. No. 95851,
01 Mar. 1995; People v. Salufrania, G.R. No. L-50884, 30
Mar. 1988) (UPLC Suggested Answers)
Q: Procopio, a call center agent assigned at a
graveyard shift, went home earlier than usual. He
proceeded immediately to their bedroom to change
his clothes. To his surprise, he found his wife Bionci in
bed making love to another woman Magna. Enraged,
Procopio grabbed a knife nearby and stabbed Bionci,
who died. (2015 BAR)
(a) What crime did Procopio commit, and what
circumstance attended the case? Explain.
(b) Assuming that Procopio and Bionci were
common-law spouses, will your answer be the
same? Explain.
(a) The crime committed by Procopio is parricide qualified
by the circumstance of relationship. Killing a spouse after
having been surprised in the act of committing sexual
intercourse with another woman is death under
exceptional circumstance under Art. 247 of the RPC.
However, in this case this is not death under exceptional
circumstance because Bionci was having homosexual
intercourse with another woman and not sexual
intercourse with a man. “Homosexual intercourse “is not
within the contemplation of the term “sexual intercourse”
in Art. 247. However, the crime of parricide is attended by
the circumstance of passion arising from a lawful
sentiment as a result of having caught his wife in the act of
infidelity with another woman. (People v. Belarmino, G.R.
No. L-4429, 18 Apr. 1952)
(b) NO, the answer will not be the same. Procopio will be
liable for homicide in the instant case but he is entitled to
a mitigating circumstance of passion and obfuscation. (Bar
Q&A by Judge Alejandria, 2022)
Q: In 1975, Pedro, then a resident of Manila,
abandoned his wife and their son, Ricky, who was then
only 3-years-old. 20 years later, an affray took place in
a bar in Olongapo City between Pedro and his
companions, on one hand, and Ricky and his friends,
upon the other, without the father and son knowing
each other. Ricky stabbed and killed Pedro in the
fight, only to find out, a week later, when his mother
arrived from Manila to visit him in jail, that the man
whom he killed was his own father. (1996 BAR)
(a) What crime did Ricky commit?
(b) Suppose Ricky knew before the killing that
Pedro is his father, but he nevertheless killed
him out of bitterness for having abandoned
him and his mother, what crime did Ricky
commit? Explain.
(a) Ricky committed parricide because the person killed
was his own father and the law punishing the crime (Art.
246, RPC) does not require that the crime be knowingly
committed.
(b)The crime committed should be parricide if Ricky knew
before the killing that Pedro is his father, because the
moral basis for punishing the crime already exists. His
having acted out of bitterness for having been abandoned
by his father may be considered mitigating. (UPLC
Suggested Answers)
Q: Aldrich was dismissed from his job by his employer.
Upon reaching home, his pregnant wife, Carmi, nagged
him about money for her medicines. Depressed by his
dismissal and angered by the nagging of his wife,
Aldrich struck Carmi with his fist. She fell to the
ground. As a result, she and her unborn baby died.
What crime was committed by Aldrich? (1994 BAR)
A: Aldrich committed the crime of Parricide with
Unintentional Abortion. When Aldrich struck his wife,
Carmi, with his fist, he committed the crime of
maltreatment under Art. 266(3) of the RPC. Since Carmi
died because of the felonious act of Aldrich, he is
criminally liable of parricide under Art. 246, RPC in
relation to Art. 4(1) 1 of the same Code. Since the unborn
baby of Carmi died in the process, but Aldrich had no
intention to cause the abortion of his wife, Aldrich
committed unintentional abortion as defined in Art. 257,
RPC. Inasmuch as the single act of Aldrich produced two
grave or less grave felonies, he falls under Art. 48, RPC, i.e.
a complex crime. (People v. Salufrancia, G.R. No. L-50884,
30 Mar. 1988) (UPLC Suggested Answers)
Q: Rafa caught his wife, Rachel, in the act of having
sexual intercourse with Rocco in the maid’s room of
their own house. Rafa shot both lovers in the chest,
but they survived. Rafa charged Rachel and Rocco with
adultery, while Rachel and Rocco charged Rafa with
frustrated parricide and frustrated homicide.
In the adultery case, Rachel and Rocco raised the
defense that Rafa and Rachel, prior to the incident in
question, executed a notarized document whereby
they agreed to live separately and allowed each of
them to get a new partner and live with anyone of
their choice as husband and wife. This document was
executed after Rachel discovered that Rafa was
cohabiting with another woman. Thus, they also
raised the defense of in pari delicto. In the frustrated
parricide and frustrated homicide cases, Rafa raised
the defense that, having caught them in flagrante
delicto, he has no criminal liability.
Will the actions for frustrated parricide and frustrated
homicide prosper? (2018 BAR)
A: YES. The actions for frustrated parricide and frustrated
homicide will prosper, and Rafa will be found guilty of
these crimes. The penalty, however, that the trial court can
impose is only destierro not penalties for frustrated
parricide and frustrated homicide, being the spouse of
Rachel. (Art. 246, RPC)
ALTERNATIVE ANSWER: NO. The actions for frustrated
parricide and frustrated homicide will not prosper
because Rafa is entitled to the benefit of Art. 247 of the
RPC.
Art. 247 of the RPC states that any legally married person
who having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of
them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro. If he shall inflict upon them
physical injuries of any other kind, he shall be exempt
from punishment.
The action will prosper to allow the court to receive
evidence. However, Rafa can be held liable only for
destierro based on Art. 247 of the RPC. The act committed
by Rafa amounts to at least serious physical injuries, so
the penalty of destierro will be imposed. If the court finds
that the act amounts to less than serious physical injuries,
Rafa will not have any criminal liability. (UPLC Suggested
Answers)
Q: Jojo and Felipa are husband and wife. Believing that
his work as a lawyer is sufficient to provide for the
needs of their family, Jojo convinced Felipa to be a
stay-at-home mom and care for their children. One
day, Jojo arrived home earlier than usual and caught
Felipa in the act of having sexual intercourse with
their female nanny, Alma, in their matrimonial bed. In
a fit of rage, Jojo retrieved his revolver from inside the
bedroom cabinet and shot Alma, immediately killing
her. (2016 BAR)
(a) Is Art. 247 (Death or Physical Injuries Inflicted
Under Exceptional Circumstances) of the RPC
applicable in this case given that the
paramour was of the same gender as the
erring spouse? (2016, 2015 BAR)
(b) Is Felipa liable for adultery for having sexual
relations with Alma?
(a) NO, Art. 247 of the RPC is not applicable. Under the
RPC, for Art. 247 to apply, the offender must catch his or
her spouse in the act of committing sexual intercourse
with another person. In People v. Marciano Gonzales (G.R.
No. 46310, 31 Oct. 1939), the Court held that to avail of the
privilege under Art. 247, the accused should surprise his
wife in the “very act of sexual intercourse”. Sexual
intercourse generally presupposes the penetration of the
man’s sexual organ into that of a woman’s.
In this case, the paramour was of the same gender as the
erring spouse. As such, there is legally, no sexual
intercourse to speak of, hence, Art. 247 is not applicable.
ALTERNATIVE ANSWER: YES, Art. 247 of the RPC is
applicable. The requisites of Art. 247 are: (1) a legally
married person surprises his spouse in the act of
committing sexual intercourse with another person; (2) he
or she kills any or both of them or inflicts upon any or
both of them any serious physical injury “while in the act”
or immediately thereafter; and (3) he has not promoted or
facilitated the prostitution of his wife or that he or she has
not consented to the infidelity of the other spouse.
All the foregoing requisites are present in the case at hand.
It is a given in the problem that Jojo caught Felipa and
Alma in the “act of sexual intercourse.” The law did not
qualify that the other person with whom the spouse be
caught committing sexual intercourse be “male or female.”
Hence, the gender of the paramour, Alma, being of the
Same gender as the erring spouse, Felipa, is immaterial.
NOTE: The answer given presupposes that Jojo and Felipa
are legally married.
(b) NO. Under Art. 333 of the RPC, adultery is committed by
any married woman who shall have sexual intercourse
with a “man” not her husband. Thus, Felipa in having
homosexual intercourse with Alma, a “woman,” is not
committing adultery. (UPLC Suggested Answers)
Q: Macky, a security guard, arrived home late one
night after rendering overtime. He was shocked to see
Joy, his wife and Ken, his best friend, in the act of
having sexual intercourse. Macky pulled out his
service gun and shot and killed Ken. Macky was
charged with murder for the death of Ken.
The court found that Ken died under exceptional
circumstances and exonerated Macky of murder but
sentenced him to destierro. The court also ordered
Macky to pay indemnity to the heirs of the victim in
the amount of P50,000.00. Did the court correctly
order Macky to pay indemnity? (2007 BAR)
A: NO, the court did not act correctly. Since the killing of
Ken was committed under the exceptional circumstances
in Art. 247, RPC, it is the consensus that no crime was
committed in the light of the pronouncement in People v.
Coricor (G.R. No. 48768, 04 Dec. 1947) that banishment
(destierro) is intended more for the protection of the
offender rather than as a penalty. Since the civil liability
under the RPC is the consequence of the criminal liability,
there would be no legal basis for the award of indemnity
when there is no criminal liability. (UPLC Suggested
Answers)
Q: Define murder. What are the elements of the crime?
(1999 BAR)
A: Murder is the unlawful killing of a person which
otherwise would constitute only homicide, had it not been
attended by any of the following circumstances:
1. With treachery or taking advantage of superior
strength, or with the aid of armed men, or employing
means to weaken the defense or of means or persons
to insure or afford impunity;
2. In consideration of a price, reward or promise;
3. By means or on the occasion of inundation, fire,
poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a railroad, fall of an
airship, or by means of motor vehicles, or with the use
of any other means involving great waste and ruin;
4. On occasion of an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public
calamity;
5. With evident premeditation; or
6. With cruelty, by deliberately and inhumanely
augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse.
The elements of murder are: (1) that a person was
unlawfully killed; (2) that such a killing was attended by
any of the above-mentioned circumstances; (3) that the
killing is not parricide nor infanticide; and (4) that the
accused killed the victim. (UPLC Suggested Answers)
Q: Lina worked as a housemaid and yaya of the oneweek-
old son of the Sps. John and Joana. When Lina
learned that her 70-year-old mother was seriously ill,
she asked John for a cash advance of P20,000.00, but
the latter refused. In anger, Lina gagged the mouth of
the child with stockings, placed him in a box, sealed it
with masking tape, and placed the box in the attic.
Lina then left the house and asked her friend Fely to
demand a P20,000.00 ransom for the release of the
spouses’ child to be paid within twenty-four hours.
The spouses did not pay the ransom. After a couple of
days, John discovered the box in the attic with his
child already dead. According to the autopsy report,
the child died of asphyxiation barely minutes after the
box was sealed.
What crime or crimes, if any, did Lina and Fely
commit? Explain. (2016 BAR)
A: Lina is liable for murder. Gagging the mouth of the child
with stockings, placing him in a box, sealing it with
masking tape, and placing the box in the attic were only
the methods employed by the defendant in committing the
murder qualified by treachery (People v. Lora, G.R. No. L-
49430, 30 Mar. 1982). Taking advantage of the defenseless
condition of the victim by reason of his tender age, oneweek
old, is treachery. (People v. Fallorina, G.R. No. 137347,
04 Mar. 2004)
She is not liable for kidnapping with murder. The essence
of kidnapping or serious illegal detention is the actual
confinement or restraint of the victim or the deprivation
of his liberty. In this case, the victim was not deprived of
his liberty since he immediately died. The demand for
ransom did not convert the offense into kidnapping with
murder. The defendant was well-aware that the child
would be suffocated to death in a few moments after she
left. The demand for ransom is only a part of the diabolic
scheme of the defendant to murder the child, to conceal
his body and then demand money before the discovery of
the cadaver. (People v. Lora, G.R. No. L-49430, 30 Mar.
1982)
Fely is not liable for murder as principal or accomplice
since there is neither conspiracy or community of design
to commit murder since her criminal intention pertains to
kidnapping for ransom. In addition, her participation of
demanding ransom for the release of the child is not
connected to murder. Her criminal mind to assist Lina in
committing kidnapping for ransom is not constitutive of a
felony. Mens rea without actus reus is not a crime. (UPLC
Suggested Answers)
Q: Eddie brought his son Randy to a local faith healer
known as “Mother Himala.” He was diagnosed by the
faith healer as being possessed by an evil spirit. Eddie
thereupon authorized the conduct of a “treatment”
calculated to drive the spirit from the boy’s body.
Unfortunately, the procedure conducted resulted in
the boy’s death. The faith healer and tree others who
were part of the healing ritual were charged with
murder and convicted by the lower court. If you are
appellate court Justice, would you sustain the
conviction upon appeal? Explain your answer. (2007
BAR)
A: NO, the conviction of murder should not be sustained
because there was no intent kill. The intent of the accused,
on the contrary is to treat Randy of his illness. However,
considering that proximate cause of Randy’s death is the
ritual, accused may be held criminally liable for Reckless
Imprudence Resulting in Homicide. (UPLC Suggested
Answers)
Q: Candido stabbed an innocent bystander who
accidentally bumped him. The innocent bystander
died as a result of the stabbing. Candido was arrested
and was tested to be positive for the use of “shabu” at
the time he committed the stabbing.
What should be the proper charge against Candido?
Explain. (2005 BAR)
A: Candido should be charged with murder qualified by
treachery because the suddenness of the stabbing caught
the victim by surprise and was totally defenseless. Being
under the influence of dangerous drugs is a qualifying
aggravating circumstance in the commission of a crime
(Sec. 25, RA 9165, Comprehensive Dangerous Drugs Act of
2002). Hence, the penalty for murder shall be imposed in
the maximum.
ALTERNATIVE ANSWER: Candido should be charged
with homicide only because the incident which gave rise
to the stabbing occurred accidentally. There is no
conscious and deliberate adoption of the means, method,
and manner of attack. However, the penalty for homicide
shall be imposed in the maximum because Candido was
under the influence of dangerous drugs when he
committed the crime, which is a qualifying circumstance
under Sec. 25 of R.A. No. 9165.
Q: A, a 76-year-old woman, was brought to the
hospital in a coma with slight cerebral hemorrhage.
An endotracheal tube was inserted in her mouth to
facilitate her breathing. B, a hospital janitor, removed
the tube. The victim started to convulse and bleed in
the mouth. Only the timely arrival of the nurse
prevented the patient’s death. The patient was then
transferred to another hospital where she died the
next day of cardio-respiratory. Is B criminally liable?
If so, what crime was committed? (1991 BAR)
A: YES. B is criminally liable for Murder (qualified by
treachery) because the death of A appears to be the
proximate cause of the overt acts of B.
A died of cardio-respiratory arrest which evidently was
brought about by the convulsion and bleeding in the
mouth of the victim due to the removal by B of the
endotracheal tube twice. The two acts of B can be
considered as the result of one criminal design.
In People v. Umaging (G.R. No. L-52797, 31 Aug. 1981), the
Supreme Court ruled that removal of the endotracheal
tube is attempted murder, qualified by treachery, because
the patient did not die. (UPLC Suggested Answers)
Q: Explain and illustrate the stages of execution of the
crime of homicide, taking into account the nature of
the offense, the essential element of each of the stages
of execution and the manner of committing such
intentional felony as distinguished from felony
committed through reckless imprudence. (2012 BAR)
A: Homicide as an intentional felony has three stages,
attempted, frustrated and consummated. In whatever
stages homicide is committed, intent to kill must be
established for being an indispensable element thereof.
However, if the victim died as a consequence of wounds
caused by an act committed with malice, intent to kill is
conclusively presumed. Hence, the crime committed is
consummated homicide. If the victim died as a
consequence of an act committed with recklessness, the
crime committed is Reckless Imprudence Resulting in
Homicide. But if the victim did not die as a consequence of
wounds caused by an act committed with malice, intent to
kill must be established beyond reasonable doubt. If intent
to kill is proven, the crime committed is frustrated or
attempted homicide. If intent to kill is not proven, the
crime committed is physical injuries.
If the offender with intent to kill attempted to inflict or
inflicted non-mortal wound upon the victim, he already
directly commenced an overt act to commit homicide.
Hence, the crime committed is attempted homicide if he
failed to inflict mortal wounds upon the victim by reason
of some cause or accident other than his own spontaneous
desistance. If the offender with intent to kill inflicted
mortal wounds upon the victim, he already performed all
acts of execution which would produce the homicide as a
consequence. Hence, the crime is either frustrated
homicide if death is not produced despite the mortal
character of the wound due to cause independent of the
will of the offender or consummated homicide if death is
produce.
All the elements necessary for execution and
accomplishment of homicide are present if the victim die
due to wounds inflicted with the offender with intent to
kill.
ALTERNATIVE ANSWER:
Elements of the crime – homicide as an intentional felony
has three stages, attempted, frustrated and consummated.
In whatever stages homicide is committed, intent to kill
must be established for being an indispensable element
thereof. However, if the victim died as a consequence of
wound cause by an act committed with malice, intent to
kill in conclusively presumed and the crime committed is
consummated homicide. But if the victim did not die as a
consequence of wounds cause by an act committed with
malice, intent to kill must be established beyond
reasonable doubt. If intent to kill is proven, the crime
committed is frustrated or attempted homicide. If intent to
kill is not proven, the crime committed is physical injuries.
Thus, lack of intent to kill is a defense in attempted or
frustrated homicide.
Nature of the crime – if the offender with intent to kill
attempted to inflict or inflicted non-mortal wounds upon
the victim, he already directly commenced an overt act to
commit homicide. Hence, the crime committed is
attempted homicide if he failed to inflict mortal wounds
upon the victim by reason of some cause or accident other
than his own spontaneous desistance. If the offender with
intent to kill inflicted mortal wounds upon the victim, he
already performed all acts of execution which would have
produced the homicide as a consequence. If death is not
produced despite the mortal character of the wounds due
to causes independent to the will of the offender, the
crime committed is frustrated homicide. If death is
produced, the crime committed is consummated homicide.
Intentional felony and culpable felony – homicide
regardless of stages must be committed with malice
(general intent) and intent to kill (specific intent). Even if
there is no intent to kill and evil intent, the offender is
liable for culpable felony if the victim died or injured as a
result of the recklessness of the former. 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
cause the death of or injury upon the victim because of the
exempting circumstance of accident. (UPLC Suggested
Answers)
Q: Moe, Curly, and Larry were drinking and singing
inside a karaoke bar when suddenly, Buboy entered
the bar and without warning, immediately shot all
three of them using a caliber .45 pistol.
Thereafter, Buboy ran out of the bar to escape. Moe,
Curly, and Larry died instantly due to gunshot wounds
in their heads and bodies. With the help of
eyewitnesses, Buboy was arrested. After inquest, the
prosecutor charged Buboy with three counts of Homicide.
Do you agree with the charge of Homicide against
Buboy? Explain briefly. (2022 BAR)
A: NO, I do not agree. Although, mere suddenness of the
attack is not sufficient to hold that treachery is present,
where the mode adopted does not positively tend to prove
that they thereby knowingly intended to ensure the
accomplishment of their criminal purpose without any
risk to themselves arising from the defense that the victim
might offer, the immediate and without warning attack
made by Buboy, consciously and deliberately adopted the
particular means. methods and forms in the execution of
the crime which tended directly to insure such execution,
without risk to himself. (People v. Gayon, GR No. 230221,
10 Apr. 2019)
The sudden and unexpected attack made on the
unsuspecting victims, depriving the latter of any chance to
defend themselves and thereby ensuring the commission
the crime constitutes treachery which qualifies the killing
to the crime of Murder.
Q: Ms. M, a Malaysian visiting the Philippines, was
about to depart for Hong Kong via an Indonesianregistered
commercial vessel. While on board the
vessel, which was still docked at the port of Manila,
she saw her mortal enemy, Ms. A, an Australian
citizen. Ms. A was seated at the front portion of the
cabin and busy using her laptop, with no idea
whatsoever that Ms. M was likewise onboard the ship.
Consumed by her anger towards Ms. A, Ms. M
stealthily approached the Australian from behind, and
then quickly stabbed her neck with a pocketknife,
resulting in Ms. A’s immediate death. Operatives from
the Philippine National Police - Maritime Command
arrested Ms. M for the killing of Ms. A, and thereafter,
intended to charge her under the RPC. Ms. M
contended that the provisions of the RPC cannot be
applied and enforced against her because both she
and the victim are not Filipino nationals, and besides,
the alleged crime was committed in an Indonesianregistered
vessel.
Assuming that the provisions of the RPC can be
applied against Ms. M, what crime under the RPC
should she be charged with? Explain. (2019 BAR)
A: Ms. M should be charged with the crime of Homicide
under the RPC. Art. 249 of the RPC punishes any person
who shall kill another without the attendance of any of the
qualifying circumstances mentioned in Art. 248, including
treachery. The suddenness of the attack does not by itself,
suffice to support a finding of alevosia, even if the purpose
was to kill, so long as the decision was made suddenly, and
the victim’s helpless position was accidental. (People v.
Lubreo, G.R. No. 74146, 02 Aug. 1991)
In a number of cases, the Court held that treachery cannot
be appreciated simply because the attack was sudden and
unexpected. (People v. Vilbar, G.R. No. 186541, 01 Feb.
2012)
ALTERNATIVE ANSWER: Ms. M should be charged with
Murder. She killed Ms. A by stealthily approaching the
latter from behind and stabbing the latter’s neck with a
pocketknife. Ms. M therefore employed means and
methods which tend directly and specially to insure the
execution of the planned killing, without risk to herself
arising from the defense which Ms. A might make. Hence,
there was treachery on Ms. M’s part, and treachery
qualifies an act of killing to Murder. (UPLC Suggested
Answers)
Q: Belle saw Gaston stealing the prized cock of a
neighbor and reported him to the police. Thereafter,
Gaston, while driving a car, saw Belle crossing the
street. Incensed that Belle had reported him, Gaston
decided to scare her by trying to make it appear that
he was about to run her over. He revved the engine of
his car and drove towards her but he applied the
brakes.
Since the road was slippery at that time, the vehicle
skidded and hit Belle causing her death. Was Gaston
criminally liable? What is the liability of Gaston? Why?
(2005 BAR)
A: YES, Gaston is liable for Belle’s death because even
though Gaston has no intent to kill Belle rather just to
scare Belle. “To scare” does not indicate intent to kill.
However, under Art. 4 of the RPC, provides in part that
criminal liability shall be incurred by any person
committing a felony although the wrongful act done be
different from that which he intended. In other words, the
rule is that when a person, by a felonious act, generates in
the mind of another a sense of imminent danger,
prompting the latter to escape from or avoid such danger
and in the process, sustains injuries or dies, the person
committing the felonious act is responsible for such
injuries or death. (US v. Valdez, , G.R. No. L-16486, 22 Mar.
1921; People v. Apra, G.R. No. L-26789, 25 Apr. 1969)
ALTERNATIVE ANSWER: YES, Gaston is liable for Belle’s
death because by his acts of revving the engine of his car
and driving towards Belle is felonious, and such felonious
act was the proximate cause of the vehicle to skid and hit
Belle, resulting in the latter’s death. Stated otherwise, the
death of Belle was the direct, natural and logical
consequence of Gaston’s felonious act. (People v. Apra, G.R.
No. L-26789, 25 Apr. 1969) (UPLC Suggested Answers)
Q: In a free-for-all brawl that ensued after some
customers inside a nightclub became unruly, guns
were fired by a group, among them A and B, that
finally put the customers back to their senses.
Unfortunately, one customer died. Subsequent
investigation revealed that A’s gunshot had inflicted on the victim a slight wound that did not cause the
deceased’s death nor materially contribute to it. It was
B’s gunshot that inflicted a fatal wound on the
deceased. A contended that his liability should, if at
all, be limited to slight physical injury. Would you
agree? Why? (2003 BAR)
A: NO. I beg to disagree with A’s contention that his
liability should be limited to slight physical injury only. He
should be held liable for attempted homicide because he
inflicted said injury with the use of a firearm which is a
lethal weapon. Intent to kill is inherent in the use of a
firearm. (Araneta, Jr. v. CA, G.R. No. L-43527, 03 July 1990)
(UPLC Suggested Answers)
